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 THE LAW 
 
 ov 
 
 CARRIERS OF PASSENGERS. 
 
 ILLT7STBATED BT 
 
 LEADING CASES AND NOTES. 
 
 SEYMOUE D. THOMPSO:^', 
 
 Author of -'Law of Negligence,'" '•Homesteads and Exemptions," 
 "Liability of Stockholders," etc. 
 
 ST. LOUIS: 
 F. H. THOMAS AND COMPANY.
 
 
 Entered according to Act of Congress, in the year 1880, by 
 
 SEYMOUR D. THOMPSON, 
 In the Office of the Librarian of Congress, at Washington. 
 
 
 St. Louis: Press of 6. T. Jones and Company.
 
 I 
 
 TO THE 
 
 HONORABLE SAMUEL TEEAT, LL.D., 
 
 United States District Judge: 
 
 For thirty consecutive years you have occupied a seat upon the 
 judicial bench, where you have administered justice without osten- 
 tation, with impartiality, learning, and diligence. This long and 
 honorable pubhc career has deserved and secured for you the admi- 
 ration of the legal profession and the respect and gratitude of your 
 fellow-citizens. It is not a trivial custom which enables me to close a 
 somewhat laborious task by offering a tribute to your worth as a jurist, 
 a citizen, and a fiiend, and by expressing the wish that the strength of 
 body and mind, which has enabled you to bear up successfully for so 
 many years under the very great labors and trials of yom- oflSce, may 
 be spared to you for many years to come. 
 
 (hi)
 
 PREFACE. 
 
 This book embodies an effort to look somewhat closely into a subject 
 which, since the introduction of steam as a means of transit, has ac- 
 quired considerable importance in the law. An attempt has been made 
 to collect and cite all cases bearing on the subject, except a few which 
 pertain exclusively to State regulation of fares, a subject which belongs 
 to carriers of goods and warehousemen as well as to carriers of passen- 
 gers. The plan of this work is the same as that of the author's woik 
 on "Negligence," and the table of cases embraces a concordance of 
 citations constructed on the same plan. The notes are designed to 
 contain a complete treatise on the law of carriers of passengers, and 
 the select cases printed at the head of each chapter are used merely as 
 a text introducing the notes. The book is thus designed to give the 
 practitioner the advantage of a number of leading cases, combined with 
 a treatise, upon a considerable title of the law. In constructing the 
 notes, fine writing has not been aimed at, but a constant effort has been 
 made to attain substantial accuracy. If the practitioner shall find in 
 this volume any aid to his labors, it is desired that he should accord a 
 large share of the credit to Mr. Edwin G. Merriam, to whose analytical 
 skill and painstaking industry its completion in its present form is 
 largely due. It is also a pleasure to state that Mr. Frank W. Peebles 
 and Mr. William L. Murfree, Jr., who assisted the author in his previous 
 work, have rendered valuable assistance upon this. 
 
 (V)
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Page 
 Of the Obligations to Receive and Carry 1-30 
 
 CHAPTER H. 
 Whek the Relation of Carrier and Passenger subsists 31-52 
 
 CHAPTER HI. 
 
 Of the Obligation op the Carrier to carry according 
 
 TO Advertisement or Contract 53-71 
 
 CHAPTER IV. 
 
 Op the Obligation op the Carrier to furnish safe and 
 
 convenient Stations and Approaches 72-110 
 
 CHAPTER V. 
 Liability of the Carrier for Negligence 111-242 
 
 CHAPTER VI. 
 
 CONTRIBUTOEY NEGLIGENCE OF THE PASSENGER 243-272 
 
 CHAPTER VII. 
 
 Application of the Doctrine of Imputed Negligence in 
 
 THE Carriage of Passengers 273-294 
 
 CHAPTER VIII. 
 
 Police Duties of the Carrier 295-305 
 
 (vii)
 
 VUl TABLE OF CONTKNTS. 
 
 CHAPTER IX. 
 
 Page 
 
 Regulations of the Carrier 306-351 
 
 CHAPTER X. 
 
 Liability of the Carrier for Assaults upon Passengers 
 
 BY HIS Servants 352-377 
 
 CHAPTER XL 
 
 Contracts lighting Carrier's Liability for Personal 
 
 Injuries 378-402 
 
 CHAPTER XH. 
 
 Use of Another's Means of Transportation — Liability 
 
 OF Carrier to Passenger for Conseqi ential Injuries 403-418 
 
 CHAPTER Xni. 
 
 Liability of Carrier for Damac^e to Pa^^senger through 
 
 Default op Connecting Lines 419-437 
 
 CHAPTER XIV. 
 Street-Railroad Coivipanies 438-447 
 
 CHAPTER XV. 
 Carriers of Passengers by Water ........ 448-487 
 
 CHAPTER XVI. 
 
 I.iability of Carrier in respect of Passenger's Baggage 488-539 
 
 CHAPTER XVH. 
 Remedies, Procedure, and Damages 540-585
 
 TABLE OF CASES PRINTED IN FULL. 
 
 Page 
 
 Bass V. Chicago and North-Western Railway Company . . . . 311 
 
 Benett v. Peninsular and Oriental Steamboat Company .... 448 
 
 Bennett v. Dutlon 2 
 
 Bennett v. New Jersey Railroad and Transportation Company . 28 1 
 
 Burns v. Belief ontaine Railway Company ; . 441 
 
 Candee v. Pennsylvania Railroad Company 419 
 
 Chamberlain v. Chandler 459 
 
 Chicago, Burlington, and Quincy Railroad Company v. Parks . 319 
 
 Christie v. Griggs ..181 
 
 Cornman v. Eastern Counties Railway Company 76 
 
 Crafter v. Metropolitan Railway Company 88 
 
 Curtis V. Rochester and Syracuse Railroad Company .... 188 
 
 Day V. Owen 306 
 
 Denton v. Great Northern Railway Company 53 
 
 Dunn V. Grand Trunk Railway 328 
 
 Great "Western Railway Company v. Blake 403 
 
 Great Western Railway Company v. Pocock 63 
 
 Hawcroft v. Great Northern Railway Company 59 
 
 Hegeman v. Western Railroad Corporation 160 
 
 Hollister v. Nowlen 489 
 
 Ingalls V. Bills 11-2 
 
 Jencks v. Coleman II 
 
 Jones V. Boyce 246 
 
 Longmore v. Great Western Railway Company 81 
 
 McCall V. Forsyth 541 
 
 McDonald v. Chicago and North- Western Railroad Company . . 93 
 
 McElroy v. Nashua and Lowell Railroad Corporation .... 409 
 
 Morrissey v. Wiggins Ferry Company 243 
 
 New York Central and Hudson River Railroad Company o. Fraloff 502
 
 TABLE OF CASES PRINTED IN FULL. 
 
 Page 
 
 Nicholson v. Lancashire and Yorkshire Railway Company ... 85 
 
 Nolton V. Western Railroad Corporation 37 
 
 O'Brien v. Boston and Worcester Railroad Company .... 22 
 
 Pearson v. Duane 17 
 
 Pendleton v. Kinsley 352 
 
 Philadelphia and Reading Railroad Company v. Derby .... 31 
 Pittsburgh, Fort Wayne, and Chicago Railway Company v. Brig- 
 ham 101 
 
 Pittsburgh, Fort Wayne, and Chicago Railway Company v. Hinds 295 
 
 Quimby v. Vanderbilt 423 
 
 Railroad Company v. Aspell 252 
 
 Railroad Company v. Jones 248 
 
 Railroad Company v. Lockwood 378 
 
 Readhead v. Midland Railway Company 124 
 
 Steamboat New World v. King 175 
 
 Stokes V. Saltonstall 183 
 
 Thorogood v. Bryan 273 
 
 Thurston v. Union Pacific Railroad Company -10 
 
 Toomey v. London, Brighton, and South Coast Railway Company 72 
 
 Vinton v. Middlesex Railroad Company (. 
 
 Wilton V. Middlesex Railroad Company 4;5->
 
 TABLE OF CASES CITED. 
 
 i^" In this table of cases the letters c, d, o, and the interrogation point (?) indicate as 
 follows : — 
 
 c — That the foregoing case is cited in judicial opinions at the pages of the reports 
 
 following. 
 d — That its authority is there distinguished. 
 ? — That its authority is there questioned, 
 o — That its authority is there denied, or the case overrnled. 
 The cases printed in italic are published in full in this volume. 
 
 A. 
 
 Abbott V. Bradstreet, 55 Me. 530. pp. 
 
 305, 518. 
 
 c 118 Mass. 277; 17 Am. L. Reg. (N. S.) 510; 
 72 N. Y. 56 ; 6 Reporter, .55. 
 Aberfoyle (The), Abb. Adm. 242 ; s. c. 1 
 
 Blatchf.360. pp. 362, 467. 
 
 c 6 Ben. 371 ; 1 Blatchf. 583. 
 Achteuhageu v. Watertown, 18 Wis. 
 
 331. p. 552. 
 
 c33 Wis. 72; 22 Wis. 248; 42 Wis. 600; 41 
 Wis. 109; 19 Wis. 497; 39 Wis. 137. ? 34 Wis. 
 362, 363. 
 
 Ackerson v. Erie R. Co., 32 N. J. L. 
 
 254. p. 575. 
 
 c 67 Me. 251. 
 Adams v. Carlisle, 21 Pick. 146. p. 551. 
 
 c 110 Mass. 50; 1 Bradw. 422; 4 Gray, 180, 
 335, 401; 19 Conn. 576; 10 Mete. 3&i; 18 N. Y. 
 252; 15 Gray, 580; 1 Allen, 190; 8 Gray, 132; 
 13 Mete. 299; 2 Woodb. & M. 345; 27 Vt. 465; 
 20 N. Y. 72 ; 26 Me. 240 ; 32 Me. 53 ; 3 La. An. 
 646; 35 N. H. 276; 12 Metc. 418; 7 Gray, 97; 
 11 Metc. 463; 40 N. 11. 416; 5 Gray, 73. 
 Adams v. Lancashire etc R. Co., L. R. 
 
 4 C. P. 739. pp. 229, 263. • 
 
 C 44 L. J. (Q. B.) 114 ; L. R. 10 Q. B. 275 ; L. 
 R. 3 Adm. 479. ? L. R. 8 Q. B. 165, 166, 167, 
 168, 169, 173, 176; 42 L. J. (Q. B.) 107. 
 Adams Express Co. v. Haynes, 42 111. 
 
 89. p. 386. 
 Adams Express Co. v. Perkins, 42 111. 
 
 458. p. 38G. 
 
 Adderley v. Cookson, 2 Camp. 15. p. 
 
 468. 
 Adwin V. New York etc. R. Co., CO 
 
 Barb. 590. p. 339. 
 Alden v. New York etc. R. Co., 26 N. 
 
 Y. 102; s. c. 3 Am. L. Reg. (x. s.) 
 
 498. pp. 158, 199, 357. 
 
 c 47 Barb. 252 ; 3 CliflF. 422 ; 47 N. Y. 287 ; 53 
 N. Y. 139. d 44 N. Y. 480, 481, 4S2, 483, is:, 
 488. ? L. R. 4 Q. B. 392. o 64 Pa. St. 229. 
 Aldworth v. Stewart, 14 L. T. (n. s.) 
 
 862 ; s. c. 4 Post. & Fin. 957. p. 365. 
 Alger V. Lowell, 3 Allen, 402. p. 271. 
 Allen V. London etc. R. Co., L. R. 6 Q. 
 
 B. 65. p. 372. 
 Allen V. Mackay, 1 Spragiie, 219. p. 
 
 487. 
 Allen V. Willard, 57 Pa. St. 374. p. 552. 
 
 e 85 Pa. St. 2.54; 29 Iowa, 48; 51 Ala. 570; 48 
 How. Pr. 48; 61 N. Y. 184; 79 Pa. St. 302; 40 
 Iowa, 345 ; 86 Pa. St. 159. 
 Allender v. Chicago etc. R. Co., 37 
 
 Iowa, 264; s. c. 43 Iowa, 276. pp. 
 
 43, 235, 270, 548, 562. 
 Allerton Packing Co. v. Egan, 86 111. 
 
 253; s. c. 18 Alb. L. J. 295. p. 222. 
 Ailing V. Boston etc. R. Co., 7 Re- 
 porter, 622. p. 511. 
 Allyn V. Boston etc. R. Co., 105 Mass. 
 
 77. p. 551. 
 
 c 21 Minn. 297 ; 67 Me. 104 ; 41 Iowa, 231 ; 12 
 Bush, 47; 105 Mass. 207; 116 Mass. .541; 1 
 Bradw. 422. 
 
 Cxi)
 
 TABLE OF CASES CITED. 
 
 Alton V. Midland R. Co., 19 C. B. (n. 
 
 s.) 213; s. c. 11 Jur. (x. s.) 672; 34 
 
 L. J. (C. P.) 292; 13 Week. Rep. 
 
 918. p. 546. 
 
 c 44 L. T. (N. S.) 152; L. R. 10 C. P. 194. 
 American Contract Corp. v. Cross, 8 
 
 Bush, 472. pp. 510, 512. 
 American Steamship Co. v. Bryan, 83 
 
 Pa. St. 446. pp. 472, 517, 518, 519. 
 Ames V. Union R. Co., 117 Mass. 541. 
 
 pp. 544, 546. 
 Anderson v. North-Eastern R. Co., 4 
 
 L. T. (K. s.) 216. p. 536. 
 Anderson v. Ross, 2 Sawyer, 91. p. 
 
 463. 
 Anderson v. Toledo etc. R. Co., 32 
 
 Iowa,, 86. p. 537. 
 Anonymous, 1 Dyer, 33 a, pi. 10. p. 56. 
 Ansell V. Waterhouse, 2 Chitty, 1 ; s. c. 
 
 6 Mau. & Sel. 385; 18 Eng. Ch. 227. 
 
 pp. 121, 132, 133, 493, 542, 644, 
 
 545. 
 
 c4 Watts & S. 180; 15 Mich. 131; 19 C. B. 
 (N. S.) 23S; S Best & S. 381, 383; L. R. 2 Q. B. 
 421, 423; 30 L. J. (Q. B.) 186; 8 N. Y. 458; 19 
 Wend. 281; 10 Upper Canada Q. B. 463; 9 
 Mete. 13 ; 19 Wend. 239. 
 Armstrong v. Lancashire etc. R. Co., 
 
 33 L. T. (N. S.) 228; s. c. L. R. 10 
 
 Exch. 47; 44 L. J. (Exch.) 89; 23 
 
 Week. Rep. 295. p. 287. 
 Armstrong v. New York etc. R. Co., 
 
 66 Barb. 437. pp. 234, 269. 
 Arnold v. Illinois etc. R. Co., 83 111. 273. 
 
 pp. 29, 402. 
 
 c 2 Bradw. 109. 
 Ashby V. White, 1 Smith's Ld. Cas. 450. 
 
 p. 285. 
 Ashmore v. Pennsylvania etc. Transp. 
 
 Co., 28 N. J. L. 180. p. 386. 
 Aston V. Heaven, 2 Esp. 533. pp. 114, 
 
 118, 130, 134, 155, 185, 199, 236, 237, 
 
 238, 355, 405, 452. 
 
 C2DUV.558; 3 Cliff. 419; 21Md.296; 8 Best 
 & S. 379, 384; L. R. 4 Q. B. 388, 419, 424; 36 
 L. J. (Q. B.) 185, 187; 48 N. H. 212; 13 Pet. 
 191; 4 Iowa, 550; 19 111. 517; 1 Duer, 241; 1 
 McCord, 447; 13 Vt. 326, 327; 11 Gratt. 711; 13 
 Conn. 326; 9 Mete. 7; 23 N. H. 284. 
 Atchison v. King, 9 Kan. 550. p. 220. 
 Atchison etc. R. Co. v. Brewer, 20 Kan. 
 
 669. p. 514. 
 
 Atlantic etc. R. Co. v. Dunn, 19 Ohio 
 
 St. 1G2. pp. 369, 575. 
 
 c 38 Ind. 127; 11 Nev. 364; 3 So. Car. 598. 
 Atwood V. Reliance Transp. Co., 9 
 
 Watts, 87. pp. 525, 526. 
 Augusta etc. R. Co. v. Renz, 55 Ga. 
 
 126. pp. 261, 444. 
 Aurora v. Pulfer, 56 lU. 270. p. 220. 
 
 c 64 111. 23; 81 111.303. 
 Aurora Branch R. Co. v. Grimes, 13 111. 
 
 585. p. 552. 
 Austin V. Great Western R. Co., L. R. 
 
 2 Q. B. 442 ; 8 Best & S. 327 ; 36 L. J. 
 
 (Q. B.) 201; 15 Week. Rep. 863; 16 
 
 L. T. (N. S.) 320. p. 44. 
 
 c 34 Upper Canada Q. B. 459. 
 Austin V. Manchester etc. R. Co., 10 
 
 C. B. 454. p. 528. 
 Austin V. New Jersey Steamboat Co., 
 
 43 N. Y. 75. p. 220. 
 Aveson v. Kennaird, 6 East, 188. p. 
 
 557. 
 Avey V. Atchison etc. R. Co., 11 Kan. 
 
 448. p. 549. 
 Aycrigg's Executors v. New York etc. 
 
 R. Co., 30 N. J. L. 462. p. 363. 
 Ayles V. South-Eastem R. Co., 37 L. J. 
 
 (Exch.) 104; s. c. L. R. 3 Exch. 146. 
 
 p. 416. 
 
 B. 
 
 Bacon v. Charlton, 7 Cush. 581. p. 557. 
 Baker v. Brinson, 9 Rich. L. 201. p. 
 
 393. 
 Baker v. Portland, 58 Me. 199. p. 330. 
 Baldwin v. Collins, 9 Rob. (La.) 468. 
 
 pp. 529, 530. 
 Baldwin v. Greenwoods Turnpike Co., 
 
 40 Conn. 238. p. 220. 
 
 e 43 Conn. 155; 13 Hun, 86. 
 Ballou V. Fai'uham, 11 Allen, 73. p. 551. 
 Baltimore v. Marriott, 9 Md. 160. p. 
 
 552. 
 Baltimore etc. R. Co. v. Blocher, 27 
 ' Md. 277. pp. 317, 336, 362, 369, 375, 
 
 565, 576. 
 
 c 3 Cliff. 428 ; 36 Wis. 464 ; 106 Mass. 189; 11 
 Nev. 364; 9 Hun, 673; 57 Me. 217, 226, 261; 36 
 Wis. 675. 
 
 Baltimore etc. R. Co. v. Boteler, 38 
 Md. 586. p. 271. 
 c 11 W. Va. 35.
 
 TABLE OF CASES CITED. 
 
 xm 
 
 Baltimore etc. R. Co. v. Brady, 32 Md. 
 
 333. p. 386. 
 Baltimore etc. R. Co. v. Gallahue, 12 
 
 Gratt. 655. p. 543. 
 Baltimore etc. R. Co. v. Smith, 23 Md. 
 
 402. p. 513. 
 Baltimore etc. R. Co. v. The State, 30 
 
 Md. 47. Tj. 2'.i3. 
 
 C 43 Md. 551 ; 3!) Md. 452. 
 
 Baltimore etc. R. Co. v. Wilkinson, 30 
 
 Md. 224. pp. 261, 445, 547, 562. 
 Baltimore etc. R. Co. v. Wightman's 
 
 Administrator, 29 Gratt. 431. pp. 
 
 200, 211, 543, 549. 
 Baltimore Steam-Packet Co. v. Smith, 
 
 23 Md. 402. pp. 436, 537, 539. 
 Bancroft v. Boston etc. R. Co., 97 Mass. 
 
 270. pp. 233, 269. 
 Bank of Orange v. Brown, 3 Wend. 158. 
 
 pp. 542, 543, 544, 545. 
 
 c4 Watts & S. 180; 58 N. Y. 134; 12 111. 412; 
 37 N. Y. 242; 1 E. D. Smith, 97; 24 N. Y. 281. 
 Bankier v. Wilson, 5 Lower Canada 
 
 Rep. 203. p. 515. 
 Barber v. Essex, 27 Vt. 62. p. 553. 
 Barden v. Boston etc. R. Co., 121 Mass. 
 
 426 ; s. c. 16 Am. L. Reg. (N. s.) 664. 
 
 p. 263. 
 Barker v. Coflin, 31 Barb. 556. pp. 65, 
 
 70, 71, 376. 
 Barker v. Midland R. Co., 18 C. B. 46; 
 
 8. c, 25 L. J. (C. P.) 184. pp. 350, 
 
 351. 
 
 c 59 Pa. St. 141. 
 Barker v. New York etc. R. Co., 24 N. 
 
 Y. 599. pp. 67, 376, 561, 
 Barnes v. Ward, 2 Car & Kir. 661 ; SsC. 
 
 9 C. B. 392 ; 14 Jur. 334 ; 19 L. J. (C. 
 
 P.) 105. p. 79. 
 
 c 38 Ua. 585; 68 N. Y. 290, 292; 3 Best & S. 
 254; 4 C. B. (N. S.) 561; 4 Hurl. & N. 70, 74; 5 
 Jur. (N. S.) 150; 28 L. J. (Exch.) 140; L. R. 1 
 C. P. .54, .'55; 11 Jur. (N. S.) 980; 7 C. B. (N. s.) 
 742, 744, 745 ; 6 Jur. (N. S.) 898, 89!) ; 29 L. J. (C. 
 P.) 206, 207; 9 Allen, 563; 15 Abb. Pr. (N. S.) 
 323; 35 N. H. 278; 2 C. P. Div. 371 ; 43 Vt. 1,30; 
 15 C. B. (N. 8.) 240; 33 L. J. (C. P.) 5; 29 Wis. 
 26 ; 10 Allen, 375 ; 33 N. J. L. 2M ■ 50 Biub. 363 ; 
 12 C. B. (N. S.) 6; 5 Duor, 499; ■> 15ost&S. 779; 
 31 L. J. (Q. B.) 218; 5 Kepoi-ter, :i45 ; 86 Pa. St. 
 SO; 34 N. J. L. 471, 472; 4 Best & S. 157; 32 L. 
 J. (Q. B.) 240. 
 
 Barney v. Oyster Bay etc. Co., 67 N. Y. 
 
 301 ; s. c. 3 Abb. N. C. 525. pp. 351, 
 
 377. 
 Barney v. Prentiss, 4 Har. & J. 317. p. 
 
 501. 
 Barney i;. The D. R. Martin, 11 Blatchf. 
 
 233; s. c. 6 Ch. Leg. N. 535. pp. 
 
 351, 377. 
 Barr v. Midland R. Co., Irish Rep. 1 C. 
 
 L. 130. p. 337. 
 Barreda v. Silsbee, 21 How. 167. p. 
 
 509. 
 Barron v. Illinois etc. R. Co., 1 Biss. 
 
 412. pp. 415, 550. 
 Bartholomew v. St. Louis etc. R. Co., 
 
 53 111. 227. pp. 534, 535, 556. 
 Barton v. St. Louis etc. R. Co., 52 Mo. 
 
 253. pp. 259, 563. 
 Bass V. Chicago etc. E. Co., 36 Wis. 
 
 450; s. c. 39 Wis. 636; 42 Wis. 654; 
 
 2 N. W. Rep. 84. pp. 67, 224, 335, 
 
 345, 346, 376, 576. (In full, p. 311.) 
 
 c 43 Wis. 667, 673; 36 Wis. 670, 671, 673, 675. 
 d 36 Wis. 675. 
 
 Batson v. Donovan, 4 Barn. & Aid. 21. 
 
 p. 497. 
 Bayley v. Manchester etc. R. Co., L. R. 
 
 7 C. P. 415 ; s. c. L. R. 8 C. P. (Exch.) 
 
 148; 41 L. J. (C. P.) 278; 28 L. T. 
 
 (N. s.) 366; 42 L.J. (C. P.) 78. pp. 
 
 369, 374. 
 
 c 36 Wis. 675. 
 Bayliss v. Lintott, 28 L. T. (x. s.) 666; 
 
 s. c. 42 L. J. (C. P.) 119; L. R. 8 C. 
 
 P. 345. pp. 521, 538, 545. 
 Beal V. South Devon R. Co., 3 Hurl. & 
 
 Colt. 337. pp. 398, 574. 
 Beall V. King, 12 East, 452. p. 542. 
 Bean v. Green, 12 Me. 422. pp. 524, 
 
 527. 
 
 c 12 Wall. 86; 46 N. H. 229; 54 Pa. St. 25 1 ; 
 1 Woods, 577. 
 Beard v. Connecticut etc. R. Co., 48 Vt. 
 
 401. p. 108. 
 Beardsley v. Swan, 4 McLean, 333. p. 
 
 553. 
 Beatty v. Gilmore, 16 Pa. St. 483. p. 
 
 552. 
 Bechcr v. Great Eastern R. Co., 22 L. T. 
 
 (N. s.) 299; s.c. 18 Week. Rep. 627;
 
 XIV 
 
 TABLE or CASES CITED. 
 
 L. R. 5 Q. B. 241; 39 L. J. (Q. B.) 
 
 122. pp. 512, 522. 
 Beck V. East River Ferry Co., 6 Robt. 
 
 87. p. 294. 
 Beckmauw. Shouse,5Rawle, 79. p. 511. 
 Beebe v. Ayres, 28 Barb. 275. pp. 70, 
 
 377. 
 
 c 31 N. J. L. 393; 6 Reporter, 490; 47 Iowa, 
 86; 10 Ch. Leg. N. 78; 5 Daly, 51; 13 Huu, 362; 
 7 Hun, 673; 46 N. H. 221, 222. 
 
 Beers v. Housatouic R. Co., 19 Conn. 
 
 566. pp. 217, 552, 563. 
 
 c 13 111. 588 ; 45 Md. 492 ; 3 Daly, 385 ; 10 Iowa, 
 271 ; 24 N. J. L. 831 ; 19 Conn. 511 ; 26 Conn. 597 ; 
 17 Mich. 122 ; 29 Conn. 209 ; 36 Md. 377 ; 1 Iowa, 
 110; 19 How. Pr. 224; 24 N. J. L. 271, 277; 101 
 Mass. 465; 21 Iowa, 106; 8 Minn. 161 ; 45 Ala. 
 441 ; 23 Conn. 443,444; 35N..II. 277; 29 Md. 440; 
 
 24 Vt. 496; 31 Miss. 193, 197, 198; 15 Ind. 489; 
 23 Conn. 347; 18 Cal. 356; 37 Mo. 294; 61 Mo. 
 591 ; 9 Wis. 217 ; 5 Kan. 182 ; 40 Miss. 386 ; 52 Mo. 
 258; 33 Iowa, 568; 29 Md. 294; 37 Mo. 550; 9 
 Rich. L. 92; 17 III. 413; 34 N. Y. 14. ? 30 Pa. 
 St. 464. 
 
 Beisiegel v. New York etc. R. Co., 14 
 Abb. Pr. (N. s.) 29. p. 553. 
 c 33 Ind. 362 ; 34 Iowa, 158, 161 ; 22 Minn. 
 172 ; 63 lU. 179 ; 3 Keyes, 479 ; 1 Abb. App. Dec. 
 438; 70 N. Y. 125; 34 Iowa, 279; 32 Wis. 275; 49 
 Cal. 257 ; 45 N. Y. 664 ; 39 Huw. Pr. 414, 515 ; 7 
 Lans. 14; 42 N. Y. 473 ; 3 Lans. 85 ; 44 Ind. 82; 
 
 25 Mich. 291: G4 N Y. 532; 6 Huu, 319; 63 N. 
 Y. 525, 5.30; 2 Hun, 538; 5 N. Y. S. C. (T. & C.) 
 125 ; 38 N. Y. 449 ; 36 X. J. L. 536, 537 ; 2 N. Y. 
 S. C. (T. &C.) 646; 45 N. Y. 850; 6 Jones & 
 Sp. 135; .50 Iiid. 45; 58 N. Y. 458, 459; 40 Barb. 
 208; 39 N. Y. 302, 363; 7 Hun, 554; 72 N. Y. 30, 
 69 ; 6 Daly, 496 ; 71 N. Y. 231 ; 59 N. Y. 472 ; 36 
 N. Y. 43. 
 
 Belfast etc. R. Co. v. Keys, 9 H. L. 
 
 Cas. 556; s. c. 8 Jar. (n. s.) 367; 
 
 9 Week. Rep. 793 ; 4 L. T. (n. s.) 
 
 841. pp. 511, 522. 
 
 c L. R. 6 Q. B. 621; 40 I., J. (Q. B.) 304; 73 
 111. 355; L. R. 2 Q. B. 444; 8 Best & S. 332; 6 
 Hun, 547, 549; L. R. 1 Q. B. 534. 
 Bell V. Drew, 4 E. D. Smith, 59. pp. 
 
 511, 512, 539. 
 B^'llefontaine etc. R. Co. v. Hunter, 33 
 
 Ind. 335. p. 558. 
 
 c 22 Minn. 172 ; 21 Minn. 297 ; 64 Mo. 490 ; 41 
 Iowa, 231 ; 9 Kan. 631 ; 25 Mich. 291 ; 50 Ind. 45, 
 68, 82; 1 Wils. (Indianapolis) 82, 489; 47 Iowa, 
 551. 
 Bellefontaine etc. R. Co. v. Snycler, 24 
 
 Ohio St. 670. pp. 284, 293. 
 
 Beman v. Rufford, 1 Sim. 550; s. c. 15 
 
 Jur. 914; 20 L. J. (Ch.) 537; 6 Eng. 
 
 Law & Eq. 106. p. 418. 
 Benett v. Peninsular etc. Steamboat Co., 
 
 6 Dow. & L. 387: s. c. 6 C. B. 774; 
 
 13 Jur. 347; 18 L. J. (C. P.) 85. pp. 
 
 26, 55, 127, 155, 463, 464. (In full, 
 
 p. 448.) 
 
 c 15 Upper Canada C. P."440. ? L. R. 4 
 Q. B. 388. 
 Bennett v. Button, 10 N. H. 481. pp. 
 
 19, 26, 28, 65, 411. (In full, p. 2.) 
 
 c 15 Mich. 131, 132; 4 Wall. 615. 
 Bennett v. Holmes, 32 Ind. 108. p. 
 
 558. 
 Bennett v. Neio Jersey etc. B. Co., 36 
 
 N. J. L. 225. p. 289. (In full, p. 
 
 281.) 
 
 c 43 Wis. 527: 6 Cent. L. J. 430; 120 Mass. 
 492. 
 Bennett v. New York etc. R. Co., 69 
 
 N. Y. 594 ; s. c. 5 Hun, 599 ; 4 Abb. 
 
 N. C. 523. pp. 339, 376. 
 
 o 37 Mich. 346. 
 Bennett v. Railroad Co., 7 Phila. 11. 
 
 pp. 69, 336, 549. 
 Benson v. New Jersey etc. Transp. Co., 
 
 9 Bosw. 412. p. 570. 
 Bentham v. Hoyle, 3 Q. B. Div. 289. 
 
 p. 337. 
 
 c 3 C. P. Div. 436. 
 Bergheim v. Great Eastern R. Co., 3 
 
 C. P. Div. 221 ; s. c. 17 Am. L. Reg. 
 
 (N. s.) 799; 6 Cent. L. J. 222; 18 
 
 Alb. L. J. 32. p. 516. 
 
 e 19 Alb. L. J. 114. 
 Bernhardt v. Rensselaer R. Co., 32 
 
 Barb. 165; s. c. 18 How. Pr. 427; 
 *23 How. Pr. 166; 1 Abb. App. Dec. 
 
 131. p. 562. 
 
 c 33 Iowa, 568; 3 Daly, 385; 49 Barb. 534: 
 32 How. Pr. 267; 35 N. Y. 39; 46 Barb. 269; 58 
 N. Y. 455; 33 Barb. 509; 24 N. Y. 445; 60 N. Y. 
 :i31. 
 Berringer v. Great Eastern R. Co., 4 
 
 C. P. Div. 163. p. 435. 
 Berry v. Cooper, 28 Ga. 543. p. 
 
 389. 
 Bigelow V. Reed, 51 Me. 325. p. 220. 
 
 c 58 Me. 206; 65 Me. 462, 550; 12 West. Jur. 
 478; 9 Wis. 26; 6 Daly, 215; 08 Me. 558; 13 
 Hun, 85; 55 N. Y. 119.
 
 TABLE OF CASES CITED. 
 
 XV 
 
 Bigelow V. Rutland, 4 Cush. 247. p. 
 
 551. 
 
 c 42 Me. 335; 22 Wis. 679, 680; 35 Me. 104; 
 35 N. H. 276; 3 Allen, 179; 42 N. H. 216; 17 
 How. 167. 
 Bigge V. Parkinson, 7 Hurl. & N. 955; 
 
 s. c. 31 L. J. (Exch.) 601. p. 153. 
 Biles V. Holmes, 11 Ired. L. 16. p. 
 
 562. 
 Bingham v. Rogers, 6 Watts & S. 495. 
 
 pp. 525, 526, 538. 
 Bird V. Great Northern R. Co., 28 L. J. 
 
 (Exch.) 3. pp. 137, 206, 207, 212, 
 
 c 8 Best & S. 389; 36 L. J. (Q. B.) 189. 
 Birkett v. Whitehaven etc. R. Co., 4 
 
 Hurl. & N. 730 ; 28 L. J. (Exch.) 348. 
 
 pp. 206, 412, 417. 
 Birmingham v. Dorer, 3 Brewst. 69. 
 
 p. 293. 
 Bissell V. Michigan etc. R. Co., 22 N. Y. 
 
 258. p. 433. 
 
 c 36 Barb. 425, 428; 12 Wall. 85; 24 N. Y. 
 271, 279. 
 Bissell V. New York etc. R. Co., 23 
 
 N. Y. 61 ; s. c. 25 N. Y. 442 ; 26 N. Y. 
 
 630; 29 Barb. 602. pp. 385, 388, 400, 
 
 401, 402. 
 
 c 17 How. 366, 370; 51 Pa. St. 327; 43 N. Y. 
 267; 2 Abb. Pr. 224; 31 N. J. L. 393; 51 N. Y. 
 63, 64; 42 N. Y. 214; 37 lU. 507; 20 Minn. 130; 
 .39 Iowa, 254; 51 Barb. 78. d 66 N. Y. 317. o 
 47 Ind. 485; 51 Pa. St. 328; 19 Ohio St. 14; 17 
 Wis. 376. 
 BLxby V. Montpelier etc. R. Co., 49 Vt. 
 
 123. pp. 27, 560, 561. 
 Black V. CarroUton R. Co., 10 La. An. 
 
 33. pp. 564, 572. 
 
 c 49 N. H. 375. 
 Blair v. Erie R. Co., 66 N. Y. 313; s. c. 
 
 3 Abb. N. C. 525. pp. 45, 520. 
 Blair v. Milwaukee etc. R. Co., 20 Wis. 
 
 254. p. 222. 
 
 c 16 Kan. 576, 577 ; 23 Wis. 193. 
 Blake v. Midland R. Co., 18 Q. B. 93; 
 
 s. c. 16 Jur. 562; 21 L. J. (Q. B.) 
 
 233; 10 Eng. Law & Eq. 439. p. 
 
 571. 
 
 clO La. An. 42; 30 Barb. 110; 23 Pa. St. 
 529; 33 Pa. St. 328; 48 N. H. 545; 8 Am. L. 
 Ueg. 36 ; 26 111. 403 ; 3 Hurl. & X. 214 ; 32 Barb. 
 29, 31 ; .34 N. J. L. 157 ; 24 Md. 105 ; 30 N. J. L. 
 200; 1 Handy, 489, 490; 26 111. 403; L. R. 3 
 Adin. 480; Irish Kep. 6 C. L. 254; 6 Nev. 231. 
 
 Block V. Bannernian, 10 La. An. 1. pp. 
 
 361, 364. 
 
 c 3 Cliflf. 427 ; 27 La. An. 5. 
 Block V. Steamboat Trent, 18 La. An. 
 
 664. p. 524. 
 
 c 20 La. An. 403; 27 La. An. 92. 
 Blossman v. Dodd, 43 N. Y. 264. p. 
 
 527. 
 
 c 10 Jones & Sp. 363, 364; 48 N. Y. 216; 57 
 N. Y. 5 ; 64 Barb. 391 ; 54 N. Y. 515 ; 14 Blatchf. 
 14 ; 42 N. Y. S. C. (T. & C.) 363. 
 
 Blossman v. Hooper, 16 La. An. 160 
 
 pp. 521, 536. 
 Blum V. Southern Pullman Palace-Car 
 
 Co., 3 Cent. L. J. 591. pp. 531, 532 
 Blumantle v. Fitchbuig R. Co., 20 Alb. 
 
 L. J. 304. pp. 511, 523. 
 Boice V. Hudson etc. R. Co., 61 Barb. 
 
 611. pp. 65, 70, 71, 376. 
 Boland v. Missouri R. Co., 36 Mo. 484. 
 
 p. 245. 
 Bolch V. Smith, 7 Hurl. & N. 736 ; s. c 
 
 8 Jur. (N. s.) 197; 31 L. J. (Exch.) 
 
 201; 10 Week. Rep. 387; 6 L. T. (n. 
 
 s.) 158. pp. 82, 83. 
 
 c21 Minn. 210; 46 Md. 218, 222; 41 N. Y. 
 532, 534; 33 L. J. (G. P.) 3; 10 Allen, 375; 67 
 N. Y. 370; 2 0. P. Div. 310; 5 Cent. L. J. 28L 
 Bomar v. Maxwell, 9 Humph. 621. pp. 
 
 511, 512, 521. 
 
 c 15 Mich. 127; 30 N. Y. 612; 41 Miss. 678; 
 10 How. Pr. 333 ; 11 Humph. 420. 
 Bonsteel v. Vanderbilt, 21 Barb. 26. 
 
 pp. 466, 567. 
 Bordeaux v. Erie R. Co., 8 Hun, 579. 
 
 pp. 341, 342, 376. 
 Boston etc. R. Co. v. Proctor, 1 Allen, 
 
 267. pp. 71, 367. 
 
 c 67 Me. 165 ; 17 Alb. L. J. 367 ; 6 Cent. L. 
 J. 382 ; 31 N. J. L. 393 ; 50 Ind. 144 ; 2 Cent. L. 
 J. 830; 54 N. Y. 516; 46 N. H. 219; 14 AUen. 
 436. 
 Bostwick V. Champion, 11 Wend, 581, 
 
 pp. 410, 412, 418, 436, 
 
 c 20 Pa. St. 503; 19 Wend. 254; 26 Ala. 738, 
 737 ; 49 N. Y. 26, 29. 
 
 Boswell V. Hudson etc. R. Co., 10 Abb. 
 
 Pr. 442. p. 401, 
 Boswell V. Hudson River R, Co., 5 
 
 Bosvv. 699. p. 402, 
 Bosworth V. Swansey, 10 Mete, 363, 
 
 p. 551. 
 
 c 22 N. H. 564; 117 Mass. 65; 3 Allen, 408;
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 43 Me. 93 ; 47 N. Y. 33 ; 10 Allen, 21 ; 120 Mass. 
 492; .■?- Barb. 299; 36 K. Y. 58; 39 Me. 197, 198; 
 119 Mass. 278; 7 Gray, 459. o 29 Wis. 24. 
 Boucher v. Lawson, Hardw. 194. p. 
 
 452. 
 Boulston V. Sandiford, Skin. 279. p. 
 
 493. 
 Boutiller v. Milwaukee, 8 Minn. 97. 
 
 p. 544. ' 
 Bowen v. New York etc. R. Co., 18 N. 
 
 Y. 408. pp. 201. 211. 
 
 c 24 N. Y. 445; 71 N. Y. 494; 68 N. Y. 310; 5 
 Hun, 526; 32 Barb. 659; 34 N. Y. 11, 408, 412; 
 63 Barb. 266. 
 Boyce v. Anderson, 2 Pet. 150. pp. 52, 
 
 114, 122, 186, 199, 356, 411. 
 
 c 15 Mich. 140; 4 Iowa, 549; 13 Pet. 192; 26 
 lU. 387; 13 Vt. 326; 7 Hill, 545, 550; 14 N. Y. 
 573; 9 Mete. 13; 11 Gratt. 710; 49 Me. 281; 13 
 Conn. 326. ? 3 Cliff. 421 ; 13 Cal. 603. 
 Boyce v. Baylifte, 1 Camp. 58. p. 
 
 470. 
 Boyce v. California Stage Co., 25 Cal. 
 
 460. pp. 554, 585. 
 
 c 2 Mont. 524, 525 ; 44 Cal. 84. 
 Brackett v. The Hercules, Gilp. 184. 
 
 p. 467. 
 Bradburn v. Great Western R. Co., 44 
 
 L. J. (Exch.) 9; s. c. L. R. 10 Exch. 
 
 1. p. 572. 
 
 c 29 Gratt. 446. 
 Bradley v. Northern Transp. Co., 15 
 
 Ohio St. 553. p. 481. 
 Brand v. Troy, 8 Barb. 368. pp. 365, 
 
 446. 
 
 c 24 Md. 121; 25 Md. 387; 18 N. Y. 258; 1 
 E. D. Smith, 272 ; 6 Duer, 641 ; 20 Ohio , 447 ; 2 
 Hilt. 38; 8 Barb. 435; 40 Miss. 458; 48 Miss. 
 124, 123, 127; 24 Md. 103; 22 Barb. 583, 584; 13 
 Barb. 15, 496; 57 Me. 214; 18 N. Y. 258; 32 
 Barb. 659. 
 Brasfield v. Lee, 1 Ld. Raym. 329. p. 
 
 564. 
 Brass v. Maitland, 6 El. & Bl. 470; s. c. 
 
 26 L. J. (Q. B.) 49. p. 145. 
 
 c 2 Abb. 0. C. 222; 1 Sawyer, 448; 15 Wall. 
 .535; 7 Lans. 213; 107 Mass. .576; 64 Barb. 213; 
 11 C. B. (N. 8.) 562,563; 2 Cliff. 27; 2 Sprague, 
 36. 
 Brazier v. Polytechnic Inst., 1 Fost. & 
 
 Fin. 712. p. 153. 
 Breen v. Texas etc. R. Co., 50 Texas, 
 
 48. p. 70. 
 Brehm v. Great Western R. Co., 34 
 
 Barb. 256. pp. 211, 220, 221, 559, 
 
 562, 563. 
 
 «• 2 Col. 457, 459; 2 Mont. 526. 
 Brehme v. Adams Express Co., 25 Md. 
 
 328. p. 386. 
 Bremner v. Williams, 1 Car. & P. 414. 
 
 pp. 115, 117, 119, 126, 127, 130, 138, 
 
 145, 155, 198, 236, 453. 
 
 e 48 N. H. 313; 8 Best & S. 379, 391,401; 
 L. R. 2 Q. B. 419, 429, 437 ; 36 L. J. (Q. B.) 185, 
 190 ; 11 Gratt. 715. d 9 Mete. 7, 10. ? L. R. 4 
 Q. B. 388. 
 
 Brennan v. Fair Haven etc. R. Co., 45 
 
 Conn. 284. p. 445. 
 Bretherton v. Wood, 3 Brod. & B. 54 ; 
 
 s. c. 9 Price, 408. pp. 26, 28, 116, 
 
 121, 132, 542, 544, 545. 
 Bridge v. Grand Junction etc. R. Co., 
 
 3 Mee. & W. 244, pp. 251, 275, 276, 
 
 277, 278, 279, 280, 284. 
 
 c 6 Cent. L. J. 46; 16 Pa. St. 466; 19 Comi 
 575; 31 Barb. 388; 18 N. Y. 252; 17 Barb. 97; 
 10 Ch. Leg. N. 121; 10 Mee. & W. 548, 549; 6 
 Jur. 955; 12 L. J. (Exch.) 11; 20 111. 493; 3 
 C. B. 15; 10 Jur. 884; 15 L. J. (C. P.) 304; 25 
 Vt. 123; 6 Duer, 26; 25 Me. 48; 13 Ga. 88; 26 
 Ga. 270; 24 N. J. L. 270, 283; 101 Mass. 465; 37 
 Cal. 423; 19 Pa. St. 301; 29 Md. 437; 15 Ind. 
 489; 12 Mete. 418; 95 U. S. 442; 2 C. P. Dir. 
 373 ; 47 Pa. St. 304 ; 22 Vt. 222, 223 ; 6 Iowa, 452 ; 
 61 Mo. .590; 52 N. H. 554; 9 Wis. 218, 219; 47 
 Miss. 222 ; 2 Col. 154, 159; 12 C. B. (N. S.) 9; 2 
 Denio, 439; 8 C. B. 1.30, 131; 15 Q. B. 283; 5 
 El. & Bl. 201; 38 Ala. S5, 88; 46 Pa. -St. 159; 6 
 Gray, 72; 13 Barb. 497; 6 Ohio St. 109; 4 Am. 
 L. Reg. (N. s.) 17 ; 9 La. An. 442 ; 6 Cent. L. J. 
 46 ; 18 N. Y. 252 ; 20 Wis. 535 ; 29 Vt. 428 ; L. R. 
 10 Exch. 53; 44 L. J. (Exch.) 93. d 43 Wis. 
 526; 6 Cent. L. J. 430; 16 N. \'. 343. 
 
 Bridges v. North London R. Co., 40 
 L. J. (Q. B.) 188 ; s. c. L. R. 6 Q. B. 
 377; 19 Week. Rep. 824; 24 L. T. 
 (N. s.) 835; 43 L. J. (Q. B.) 151 ; L. 
 R. 7 H. L. 213; 23 Week. Rep. 62; 
 30 L, T. (N. s.) 844 ; 43 L. J. (Q. B.^ 
 151; L. R. 7 Q. B. 213; 23 Week. 
 Rep, 62; 30 L. T. (n. s.) 844 (revers- 
 ing judgment of Exchequer Cham- 
 ber) ; 40 L. J. (Q. B.) 188. pp. 230, 
 231, 268, 272, 563. 
 c 2 McAi-thur, 50 ; 28 Mich. 453 ; 2 Q. B. Di7 
 
 87, 89; 2 Exch. Div. 251, 252; L. R, 9 C. P. lU; 
 
 43 L. J. (C. P.) 139; L. R. 8 Q. B. 168, 169, 178, 
 
 181, 182; 42 L. J. (Q. B.) 109; Irish Rep. 3 C. 
 
 L.245; 36 Upper Canada Q. B. 371; 37 Upper
 
 TABLE OF CASES CITED. 
 
 XVll 
 
 Canada Q. B. 467. rt 3 App. Cas. 199, 200, 201, 
 
 202, 208; L. R. 7 C. P. 327 ; 41 L. J. (C. P.) 143. 
 
 Brien v. Bennett, 8 Car. & P. 724. p. 
 42, 
 
 Briggs V. Grand Trunk E. Co., 24 Up- 
 per Canada Q. B. 510. pp. 70, 71, 
 376, 377. 
 
 Briggs V. Taylor, 28 Vt. 180. p. 357. 
 c 3 Cliff. 422 ; 48 JJ. H. 313 ; 20 Minn. 133. 
 
 Briggs V. Vanderbilt, 19 Barb. 222. 
 pp. 466, 555, 567. 
 T 28 N. Y. 224. 
 
 Brock V. Gale, 14 Fla. 523. pp. 484, 
 
 510, 537. 
 Brockway v. Lascala, 1 Edm. Sel. Cas. 
 
 135. p. 472. 
 Brooke v. Grand Trunk R. Co., 15 Mich, 
 
 332. p. 424. 
 Brooke v. Pickwick, 4 Bing. 218; s. c. 
 
 12 J. B. Moo. 447; 13 Eng. Com. 
 
 Law, 404. pp. 451, 491, 494, 498, 512, 
 
 523, 527. 
 
 C 23 Md. 410; 12 Ga. 224; 19 Wend. 236, 237, 
 241, 269; 10 How. Pr. 332; 9 Lower Canada 
 Eep. 180; 44 N. H. 330; 7 Am. L. Reg. (N. S.) 
 537; 6 Blatcbf. 69; 46 N. H. 227; 6 Cusii. 72; 
 29 Ind. 364 ; 6 Hun, 547 ; 16 Pa. St. 78. 
 Brown v. Camden etc. R. Co., 83 Pa. 
 
 St. 316. p. 528. 
 Brown v. Eastern R. Co., 11 Cash. 97. 
 
 p. 528. 
 
 c 12 Gray, 392 ; 43 N. Y. 268 ; 12 Wall. 85 ; 21 
 Gratt. 673; 64 Barb. 391; 46 N. H. 219; 14 
 Allen, 437; 49 Barb. 21. 
 Brown v. Edgington, 2 Man. & G. 279. 
 
 pp. 127, 129, 137, 142, 144. 
 Brown v. Great Eastern R. Co., 2 Q. B. 
 
 Div. 406. p. 337. 
 
 C 3 C. P. Div. 434. 
 Brown v. Hannibal etc. R. Co., 64 Mo. 
 
 430; s. c. 66 Mo. 588. pp. 369, 375, 
 
 557, 572. 
 
 c 66 Mo. .595. 
 Brown v. Harris, 2 Gray, 359. p. 467. 
 Brown v. Mallett, 5 C. B. 599. p. 455. 
 Brown v. Missouri etc. R. Co., 64 Mo. 
 
 536. pp. 44, 376, 401. 
 Brown v. New York etc. R. Co., 32 N. 
 
 Y. 597; s. c. 34 N. Y. 404; 31 Barb. 
 
 835. pp. 201, 222, 290, 294. 
 
 c46 Pa. St. 161; 4 Am. L. Reg. (N. S.) 14; 
 36 N. Y. 381; 63 Barb. 2G0; 3 Robt. 515; U 
 Iowa, 158; 28 Wis. 495; 35 N. Y. 37, 44, 45; 34 
 
 N. Y. 29; 39 N. Y. 361; 6 Robt. 87; 38 N. Y. 
 262. ? 66 N. Y. 14; 65 Barb. 151, 152, 155; 46 
 Barb. 270. 
 Brown v. The D. S. Cage, 1 Woods, 
 
 403. p. 481. 
 Bryant v. Rich, 104 Mass. 156; s.c. 106 
 
 Mass. 180. pp. 366, 369, 581. 
 
 C 36 Wis. 675 ; 62 Me. 88 ; 44 Iowa, 318. 
 Buel V. New York etc. R. Co., 31 N. Y. 
 
 314. pp. 261, 267. 
 Buffett V. Troy etc. R. Co., 36 Barb. 
 
 420; s. c. 40 N. Y. 168. p. 433. 
 Burges v. Wickham, 3 Best & S. 669; 
 
 s. C.33L.J. (Q. B.) 17. p. 148. 
 Burgess v. Clements, 4 Mau. & Sel. 305. 
 
 p. 515. 
 Burgess v. Great Western R. Co., 6 C. 
 
 B. (N. s.) 923. pp. 101, 107, 269. 
 c 56 Me. 242 ; 26 Iowa, 145. 
 
 Burke v. Broadway etc R. Co., 34 How. 
 
 Pr. 239. p. 553. 
 Burke v. South-Eastern R. Co., 5 C. P. 
 
 Div. 1 ; s. c. 28 Week. Rep. 306 ; 20 
 
 Alb. L.J. 498. p. 437. 
 Bumell V. New York etc. R. Co., 45 N. 
 
 Y. 184. pp. 432, 534, 535, 539. 
 
 c 57 N. Y. 555, 557, 558; 37 N. Y. Superior 
 Ct. 532. 
 Burnham v. Grand Trunk R. Co., 63 
 
 Me. 298. p. 70. 
 Burns v. Bellefontaine etc. B. Co., 50 
 
 Mo. 139. pp. 261, 444. (In full, p. 
 
 438.) 
 Burns v. Cork etc. R. Co., 13 Irish Rep. 
 
 C. L. (N. s.) 543. pp. 135, 147, 157, 
 199, 221, 554. 
 
 c L. R. 4 C. B. 391; 8 Best & S. 385, 403; L. 
 R. 2 Q. B. 425, 440; 36 L. J. (Q. B.) 188, 195; L. 
 R. 5 Q. B. 195, 512. 
 
 Burns «. Elba, 32 Wis. 605. P- 271. 
 Burrows v. Erie etc. R. Co., 63 N. Y. 
 
 556. pp. 227, 228, 267. 
 Bushv. Johnson, 23 Pa. St. 209. p. 552. 
 Butcher v. London etc. R. Co., 16 C. B. 
 
 13; s. c. 1 Jur. (x. s.) 427; 24 L. J. 
 
 (C. P.) 137; 3 Am. L. Reg. 694; 21) 
 
 Eng. Law & Eq. 347. pp. 611, 518, 
 
 532. 
 
 c 2 Jur. (N. 8.) 141 ; 19 Wis. 42 ; 41 Ala. 504 ; 
 35 Vt. 620 ; 3 O. P. Div. 226, 227 ; 18 Alb. L. J. 
 33 ; L. R. 6 C. P. 50, 51 ; 40 L. J. (C. P.) 12. 
 «I 28 Upper Canada Q. B. 380.
 
 XVlil 
 
 TABLE OF CASES CITED. 
 
 Butterfield v. Forrester, 11 East, 60; s. 
 
 c. 2 Thomp. on Neg. 1104. pp. 251, 
 
 275, 276, 277, 278, 551. 
 
 c 68 Me. 557; 2 0. B. (N. S.) 739; 105 Mass. 
 207; 4 Ind. 100; 6 Gill, 205; 10 Mich. 198; 4 
 Mo. App. 489; 2 Bradw. 39; 31 Miss. 193; 47 
 Miss. 419; 2 Col. 158,159; 12 C. B. (N. S.) 9; 3 
 Mee. & W. 248; 3 Fla. 26; 24 N. J. L. 832; 7 
 Taun. 514; 38 Ala. 85; 18 Cal. 356; 22 Vt. 21, 
 22, 25 ; 6 Iowa, 4,')2 ; 2 Pick. 624 ; 61 Mo. 591 ; 52 
 N. H. 554; 9 Wis. 217; 25 Ind. 197; 24 Vt. 496; 
 22 N. J. L. 189 ; 21 Pick. 147 ; 13 111. 587 ; 6 Cent. 
 L. J. 46; 45 Md. 91; 41 X. H. 50; 2 Woodb. & 
 M. 345; 4 Per. & Dav. 676; 1 Q. B. 36; 5 Jur. 
 798 ; 12 Mete. 418 ; 9 Pa. St. 194 ; 16 Pa. St. 465, 
 460, 468; 19 Conn. 572; 33 Ind. 356, 363, 367; 20 
 N. Y. 69; 3 Ohio St. 189, 190; 29 Md. 437; 2 
 Cash. 604, 605; 32 Barb. 167; 15 Conn. 131; 18 
 X. Y. 251; 5 El. & Bl. 855; 2 Jur. (N. S.) 117; 
 17 Barb. 97 ; 5 Duer, 25 ; ^ N. J. L. 269, 270, 283 ; 
 35 Ind. 466; 10 Ch. Leg. N. 121; 33 Barb. 416; 
 63 Mo. 420; 30 Ala. 329; 26 Conn. 597, 601; 10 
 Mee. & W. 549; 12 Pick. 177; 26 Me. 240; 11 
 Wis. 169, 170, 171 ; 63 N. C. 349 ; 6 Jur. 955 ; 12 
 L. J. (Exch.) 11; 23 Wend. 452; 61 Barb. 456; 
 2N. H. 363; 2 McMull. 408; 25 Me. 49; 18 Ga. 
 686 ; 13 Ga. 88 ; 26 Ga. 270 ; 4 Jur. 320 ; 29 Conn. 
 209 ; 20 111. 488, 491, 493 ; 53 Ala. 79 ; 67 Me. 104 ; 
 6 Cow. 191; 3 C. B. 9; 8 Gray, 132; 27 Conn. 
 412 ; 95 U. S. 442 ; 20 Wis. 535 ; 6 Cent. L. J. 46 ; 
 26 111. 376; 18 N. Y. 251; 7 Wis. 431; 41 N. H. 
 50; 37 Mo. 456; 7 Bosw. 135; 104 Mass. 142; 37 
 Mo. 553. 
 
 Button V. Hudson River R. Co., 18 N. 
 
 Y. 248. p. 553. 
 
 c 7 Bosw. 135; 32 Barb. 169; 4 Daly, 331; 19 
 How. Pr. 203; 49 Barb. 531; 33 Barb. 416; 16 
 Abb. Pr. 349; 34 Cal. 164; 50 How. Pr. 128; 
 1 Keyes, 572; 33 How. Pr. 199; 2 Abb. App. 
 Dec. 381; 20 >r. Y. 71; 5 Hun, 480; 25 Mich. 
 283 ; 42 N. Y. 361 ; 11 Wis. 171 ; 35 Ind. 466 ; 13 
 Ind. 89; 38 Vt. 51; 15 VYall. 407; 65 Barb. 152; 
 4 Jones & Sp. 448; 25 Ind. 197; 40 Barb. 209, 
 210; 6 Robt. 92, 93 ; 38 Ala. 85, 87. 
 Buxton V. North-Eastern R. Co., L. R. 
 
 3 Q. B. 549 ; s. c. 37 L. J. (Q. B.) 549. 
 
 pp. 412, 413, 415, 432. 
 
 c Irish Rep. 6 C. L. 124; 40 L. J. (Q. B.) 94; 
 L. R. 6 Q. B. 273 ; L. R. 5 0. P. 441, 444. 
 
 Buzzell V. Laconia Man. Co., 48 Me. 
 
 113. p. 552. 
 
 c 71 111. 420; 50 Mo. 305; 3 Dill. 325; 14 
 Minn. 363; 13 Allen, 442; 39 Iowa, 621; 66 Me. 
 425 ; 42 Ala. 714. o 48 Cal. 426. 
 Byrne v. Wilson, Iristi Rep. 15 C. L. 
 
 332. pp. 220, 290. 
 
 c 50 N. H. 146 ; 39 N. J. L. 309, 310 ; L. R. 3 
 Adm. 476. 
 
 c. 
 
 Cadwallader v. Grand Trunk R. Co., 9 
 
 Lower Canada Rep. 169. pp. 611, 
 
 512, 513, 538. 
 Cahill V. London etc. R. Co., 10 C. B. 
 
 (N. s.) 154; s. c. 7 Jur. (n. s.) 1164; 
 
 30 L. J. (C. P.) 289; 9 Weeli. Rep. 
 
 653; 4 L. T. (n. s.) 246 (affirmed on 
 
 appeal, 13 C. B. (n. s.) 818 ; 8 Jur. 
 
 (N. s.) 1063; 31 L. J. (C. P.) 271; 
 
 10 Week. Rep. 391; 3 Am. L. Reg. 
 441). pp. 511, 522, 523. 
 
 c 36 Upper Canada Q. B. 355, 356; L. R. 6 
 Q. B. 619, 621; 40 L. J. (Q. B.) 303, 304; 73 111. 
 353, 354, 356; 8 Best & S. 333; 6 Hun, 547; 56 
 Me. 62; 8 Am. L. Reg. (N. 8.) 399; 98 Mass. 
 378. 
 Caldwell v. Murphy, 1 Duer, 233; s. c. 
 
 11 N. Y. 419. pp. 208, 557, 564, 571. 
 c 6 Duer, 532 ; 44 Ind. 201 ; 19 111. 577; 5 Hun, 
 
 529; 32 Barb. 659; 48 N. H. 315, 545; 11 N. T. 
 416 ; 24 N. Y. 193 ; 49 Me. 281 ; 1 Hilt. 283. 
 Caldwell v. New Jersey Steamboat Co., 
 
 47 N. Y. 282. pp. 199, 205, 211, 212, 
 
 216, 221, 222, 233, 480, 574, 575. 
 
 c 58 N. Y. 139, 141; 3 Jones & Sp. 130. 
 Callahan v. Bean, 9 Allen, 401. p. 551. 
 
 c 58 Me. 388; 17 Mich. 120; 98 Mass. 669; 
 104 Mass. 62; 14 Allen, 431. 
 Cal.vc's Case, 8 Co. 63. pp. 33, 491, 
 
 516. 
 Camden etc. R. Co. v. Baldauf, 16 Pa. 
 
 St. 67. pp. 386, 522, 523, 539. 
 Camden etc. R. Co. v. Burke, 13 Wend. 
 
 611. pp. 7,. 114, 121, 236, 238, 491, 
 
 521, 526. 
 
 cl5 Mich. 140; 30 N. Y. 615; 3 Park. Cr. 
 Cas. 237; 21 Md. 297; 23 Md. 410; 44 Ind. 201; 
 4 Iowa, 550; 29 Vt. 427 ; 24 X. Y. 218; 32 Barb. 
 659; 7 Rich. L. 163; 7 Mete. 601; 1 Am. Rail. 
 Cas. 394; 3 E. D. Smith, 333; 48 N. H. 315; 24 
 N. Y. 193; 19 Wend. 236; 9 Mete. 13; 39 Iowa, 
 249; 5 Cent. L. J. 58. 
 
 Camden Transp. Co. v. Belknap, 21 
 
 Wend. 354. pp. 514, 526. 
 
 c 57 N. Y. 558 ; 11 N. Y. 490 ; 31 Conn. 283 ; 
 22 Iowa, 171; 13 111. 748; 29 Ind. 861; 7 Hill, 
 573 ; 1 Dakota, 360. 
 Campbell v. Caledonian R. Co., 14 
 
 Scot. Sess. Cas. (n. s.) 806. p. 530. 
 Campbell v. Perkins, 8 N. Y. 430. p. 
 
 418. 
 
 c 24 N. Y. 28L
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 Canadian (The), 1 Brown's Adm. 11. 
 
 pp. 466, 568, 570. 
 Candace (The), 1 Low. 126. p. 482. 
 Candee v. Pennsylvania E. Co., 21 Wis. 
 582. pp. 432, 433, 435. (In full, p. 
 
 419.) 
 Cannings. Williamstown, 1 Cush. 451. 
 
 p. 571. 
 
 c63 111. 320; 20 Wis. 617; 24 Md. 107; 11 
 Allen, 79; 44 Iowa, 320, 321 ; 6 Nev. 232; 48 N. 
 H. 545. 
 
 Cantling v. Hannibal etc. E. Co., 54 
 
 Mo. 385. p. 512. 
 Carleton v. Franconia Iron Co., 99 
 
 Mass. 216. p. 226. 
 
 c 102 Mass. 502; 42 Ind. 343; 116 Mass. 68; 
 59 Me. 188; 56 Me. 506. 
 
 Carlin v. Chicago etc. R. Co., 37 Iowa, 
 
 316. p. 552. 
 
 C42 Iowa, 195, 681; 38 Iowa, 126, 297; 41 
 Iowa, 231; 48Vt. 129. 
 (^armanty v. Mexican Gulf Co., 5 La. 
 
 An. 703. p. 548. 
 Carpue v. London etc. R. Co., 5 Q. B. 
 
 747 ; s. c. Dav. & M. 608 ; 3 Eng. Rail. 
 
 Cas. 692; 8 Jur. 464; 13 L. J. (Q. 
 
 B.) 138. pp. 137, 191, 192, 196, 207, 
 
 211, 213. 
 
 c38 Miss. 275; 21 Md. 291; 4 Iowa, 549; 8 
 Best & S. 389; L. R. 2 Q. B. 427; 36 L. J. (Q. 
 B.) 189; 18 N. T. 538, 544; 9 Rich. L. 91; 3 E. 
 D. Smith, 333; 109 Mass. 406; 2 Fost. & Fin. 
 733; 9 Jur. (N. S.) 341; 16 Barb. 117; 1 Moo. 
 P. C. C. 116. d Irish Rep. 6 C. L. 226; 11 
 Allen, 317. 
 Carr v. Lancashire R. Co., 7 Exch. 707. 
 
 p. 390. ' 
 
 Carroll v. New York etc. R. Co., 1 
 
 Duer, 571. pp. 260, 262, 333. 
 
 C 86 Pa. St. 145 ; 6 Duer, 415, 419 ; 34 N. Y. 
 11; 36 Mo. 435; 37 Mo. 548; 57 N. Y. 396; 58 
 Me. 196. 
 Carroll v. Staten Island R. Co., 58 N. 
 
 Y. 126. pp. 197, 199, 205, 221, 223, 
 
 224, 480, 484. 
 Carter v. Peck, 4 Sneed, 203. pp. 432, 
 
 433. 
 
 c 1 Cent. L. J. .542. 
 Cary v. Cleveland etc. R. Co., 29 Barb. 
 
 35. pp. 432, 534, 536. 
 
 o 45 N. Y. 189; 36 Barb. 428; 7 Lane. 64; 50 
 Barb. 205; 24 N. Y. 278; 12 Wall. 85. 
 Caswell V. Boston etc. R. Co., 98 Mass. 
 
 104. p. 110. 
 
 c 104 .Mass. 141 ; 103 Mass. 514. 
 
 Caterbam v. London etc. R. Co., 87 
 
 Eng. Com. Law, 410. p. 98. 
 Catley v. Wintringham, Peake, 150. p. 
 
 499. 
 Catlin V. Hill. (See Thorogood v. 
 
 Bryan.) 
 
 c 46 Pa. St. 159; 4 Am. L. Keg. (N. S.)17. 
 Caton V. Burton, Cowp. 330. p. 460. 
 Cayzer v. Taylor, 10 Gray, 274. p. 222. 
 
 c 102 Mass. 584; 46 Mo. 169; 13 Allen, 238; 
 10 Allen, 233; 55 Ind. 49; 12 Minn. 372; 56 Ind. 
 518; 66 Me. 425; 8 AUen, 446; 58 N. Y. 59; UO 
 Mass. 25. 
 
 Central R. Co. v. Green, 86 Pa. St. 421 ; 
 s. c. 5 Week. Jur. 297 ; 6 Cent. L. J. 
 
 381. pp. 349, 850. 
 Central R. Co. v. Van Horn, 38 N. J. L. 
 
 133. pp. 227, 231, 268, 548. 
 Chaffee v. Boston etc. R. Co., 104 Mass. 
 
 108. p. 270. 
 Chamberlain v. Chandler, 3 Mason, 242. 
 
 pp. 314, 316, 361, 365, 463, 469, 470. 
 
 (In full, p. 459.) 
 
 c 1 Cliff. 149; 3 Cliff. 427; 36 Wis. 460; 106 
 Mass. 189; 31 How. Pr„278; 1 Sprague, 186; 
 36 Wis. 672; 27 La. An. 5, 12; 6 Ben. 371; 3 
 Sawyer, 313; 57 Me. 217; Chase's Dec. 152. 
 d 3 McAll. 105. 
 Chamberlain v. Milwaukee etc. R. Co., 
 
 7 Wis. 425; s. c. 11 Wis. 238. pp. 
 
 552, 553, 556. 
 
 c 11 Wis. 248; 37 Wis. 322; 23 Wis. 672; 37 
 Mo. 548; 3 Sawyer, 440; 5 Biss. 317; 18 Wis. 
 708; 46 Texas, 539. ? 17 Ohio St. 211; 2 Col. 
 448; 42 Ala. 723 ; 28 Ind. 374. 
 Chamberlain v. Western Transp. Co., 
 
 44 N. Y. 305; s. c. 45 Barb. 218. 
 
 pp. 484, 485, 486, 521, 530. 
 Champion v. Bostwick, 18 Wend. 175. 
 
 p. 412. (See Bostwick v. Champion.) 
 
 c2 Sawyer, 25; 12 Wall. 85; 19 Barb. 237; 
 n Allen, 296; 99 Mass. 257. 
 Chapman v. New Haven R. Co., 19 N. 
 
 Y. 341. pp. 283, 284, 290. 
 Check V. Little Miami R. Co., 2 Disney, 
 
 237; s. c. 7 Am. L. Reg. 427, pp. 
 
 514, 530. 
 Cheney v. Boston etc. R. Co.., 11 Mete. 
 
 121. pp. 70, 377. 
 
 o 67 Me. 165; 17 Alb. L. J. .367; 6 Cent. L. 
 J. 382; 22 Barb. 132; 47 Iowa, 86; 51 111. 340; 
 10 Ch. Leg. N. 78; 6 Kcporter, 490; 50 Ind. 
 144; 2 Cent. L. J. 830; 15 Gray, 450; 63 Mc.
 
 XX 
 
 TABLE OF CASES CITED. 
 
 304 ; 71 Pa. St. 436, 437 ; 43 lU. 423 ; 46 N. H. 
 219, 221, 222 ; 55 Ind. 372 ; 14 Allen, 436. 
 Chicago V. Major, 18 111. 349. p. 552. 
 
 •c83 111. 205, 206, 207; 26 111. 389, 401, 402, 
 40;j; IS Ohio St. 412; 75 111. 471; 42 111. 176; 45 
 111. 205 ; 43 111. 346; 48 111. 412; 20 lU. 490, 496; 
 3 Dill. 126; 52 111. 295; 53 Ind. 156; 22 Wis. 
 618, 619; 5 Wall. 106; 1 Ch. Leg. N. 105; 41 
 Iowa, 80; 8 JMinn. 166. 
 Chicago City R. Co. v. Munford, 21 
 
 Alb. L. J. 214. p. 442, 444, 
 Chicago City R. Co. v. Young, 62 111. 
 
 238. p. 562. 
 Chicago etc. R. Co. v. Bell, 70 111. 102. 
 
 p. 271. 
 Chicago etc. R. Co. v. Boger, 1 Bradw. 
 
 472. pp. 340, 376, 377, 557. 
 Chicago etc. R. Co. v. Boyce, 73 111. 
 
 510. pp. 512, 534, 535. 
 Chicago etc. R. Co. v. Clayton, 78 111. 
 
 616. p. 514. 
 Chicago etc. R. Co. v. Collins, 56 111. 
 
 212. p. 513. 
 Chicago etc. R. Co. v. Coss, 73 lU. 394. 
 
 pp. 270, 554. 
 
 c 2 Bradw. 43. 
 Chicago etc. R. Co. v. Dewey, 26 111. 
 
 255. p. 270. 
 
 c 42 Miss. 614; 73 111. 397; 81 111. 454; 46 111. 
 83; 71 111. 607; 49 111. 503, 504; 52 111. 330; 28 
 Mich. 42 ; 72 111. 388, 397 ; 54 111. 484 ; 37 111. 341 ; 
 2 Bradw. 38. 
 Chicago etc. R. Co. v. Fahey, 52 111. 81. 
 
 pp. 434, 520, 521. 
 Chicago etc. R. Co. v. Fairclough, 52 
 
 m. 106. pp. 534, 535. 
 
 C 53 111. 232. 
 
 Chicago etc. R. Co. v. Fay, 16 111. 568. 
 
 p. 333. 
 Chicago etc. R. Co. v. Fillmore, 57 111. 
 
 265. pp. 107, 558, 584. 
 Chicago etc. R. Co. v. Flagg, 43 111. 
 
 364. pp. 341, 343, 377, 571, 579. 
 
 C 59 Ind. 323; 79 111. 590, 591; 42 111. 429; 43 
 111. 422 ; 67 111. 114, 314. 
 Chicago etc. R. Co. v. George, 19 111. 
 
 510. pp. 202, 224. 
 
 c 26 111. 387 ; 88 111. 614. 
 
 Chicago etc. R. Co. v. Gregory, 58 111. 
 
 272. p. 552. 
 Chicago etc. R. Co. v. Griffln, 68 111. 
 
 499. pp. 301, 303, 338, 375, 376, 577. 
 
 C 37 Mich. 346. 
 
 Chicago etc. R. Co. v. Hazzard, 26 111. 
 
 373. pp. 228, 333, 552. 
 
 c 59 Ind. 322, 323; 41 Ind. 499; 58 Me. 197; 
 42 Miss. 614; 30 111.24. 
 Chicago etc. R. Co. v. Herring, 57 111. 
 
 59. p. 576. 
 Chicago etc. R. Co. v. Hughes, 69 111. 
 
 170. p. 583. 
 Chicago etc. R. Co. v. McCarthy, 20 111. 
 
 385. p. 418. 
 Chicago etc. R. Co. v. Mitchie, 83 111. 
 
 427. p. 44. 
 Chicago etc. R. Co. v. Morris, 26 111. 
 
 400. p. 549. 
 
 c 29 Gratt. 439; 1 Ch. Leg. N. 105; 39 Iowa, 
 255; 4 Col. 81; 75 111. 471; 45 111. 205; 43 111. 
 346; 48 111. 412; 53 Ind. 156; 52 111. 295; 77 111. 
 72; 5 Wall. 106; 42 111. 171 ; 2 Bradw. 313. ? 1 
 Biss. 415. 
 Chicago etc. R. Co. v. Mumford, 21 
 
 Alb. L. J. 214. p. 268. 
 Chicago etc. B. Co. v. Parks, 18 111. 
 
 460. pp. 317, 340, 376, 579. (In full, 
 p. 319.) 
 
 c 42 Miss. 329; 36 Wis. 464; 7 PhUa. 13; 15 
 N. Y. S. C. (T. & C.) 581; 51 Ind. .570; 48 111. 
 257; 43 111. 366, 368; 15 Minn. 56; 19 111. 363, 
 364; 63 111. 307 ; 21 111. 189; 43 111. 423; 56 Ala. 
 252. <l 43 111. 179 ; 79 Dl. 590. 
 
 Chicago etc. R. Co. v. Peacock, 48 111. 
 253. pp. 340, 376, 377, 580. 
 C 63 111. 307. d 79 111. 590. 
 
 Chicago etc. R. Co. ij. Pondrom, 51 111. 
 333 ; S.C.2 Ch. Leg. N. 169. pp. 259, 
 583. 
 C 39 Md. 351. 
 
 Chicago etc. R. Co. v. Randolph, 53 111. 
 
 510. pp. 67, 228, 267, 343. 
 
 c 52 Ind. 546; 78 111. 94; 3 Cent. L. J. 416; 
 55 Ind. 372. 
 
 Chicago etc. R. Co. v. Roberts, 40 111. 
 503. pp. 376, 377, 579. 
 C 63 111. 307. €l 43 III. 368 ; 79 111. 590. 
 
 Chicago etc. R. Co. v. Scates, 9 Cent. 
 
 L. J. 167. pp. 106, 226, 267. 
 Chicago etc. R. Co. v. Shannon, 43 111. 
 
 338. p. 550. 
 
 c 70 111. 215; 75 111. 471; 58 111. 284; S3 111- 
 207; 45 111. 204; 63 111. 295; 68 111. 5.52; 48 111. 
 412; 52 111. 296; 77 111. 72, 225; 71 111. 296. 
 Chicago etc. R. Co. v. Taylor, 69 111. 
 
 461. p. 224. 
 
 Chicago etc. R. Co. v. Whipple, 22 111. 
 105. p. 418,
 
 TABLE OF CASES CITED. 
 
 XXI 
 
 Chicago etc. E. Co. v. Williams, 55 111. 
 
 185. pp. 301, 345, 346, 574, 580. 
 Chicago etc. R. Co. v. Wilson, 63 HI. 
 
 167. pp. 105, 107, 223, 269. 
 Chicago etc. R. Co. v. Young, 62 lU. 
 
 238. p. 444. 
 Child V. Hearn, L. R. 9 Exch. 176. p. 
 
 287. 
 Chilton V. London etc. E. Co., 16 Mee. 
 
 & W. 212. pp. 337, 373. 
 
 C 19 111. 373; Irish Rep. 1 C. L. 142, 144, 
 149, 156, 159. 7 3 C. P. Div. 431, 434, 436. 
 
 Chisholm v. Northern Transp. Co., 61 
 
 Barb. 363. pp. 475, 485, 487, 530. 
 
 Christie v. Griggs, 2 Camp. 79. pp. 
 
 115, 119, 126, 130, 131, 134, 135, 145, 
 
 155, 185, 187, 191, 198, 199, 211, 236, 
 
 238, 355, 451, 453. (In full, p. 181.) 
 
 C 2 Duv. 558; 3 Cliff. 419; 21 Md. 283, 288, 
 
 296; 18 N T. 411, 538; 34 Barb. 268; 38 Miss. 
 
 275; 13 Pet. 191; 48 N. H. 312; 4 Iowa, 549; 2 
 
 *Mont. 526, 527; L. R. 4 Q. B. 388; 8 Best & 
 
 8. 379, 384, 386, 401 ; L. R. 2 Q. B. 1S5, 187, 188, 
 
 194; 19 ni. 517; 58 N. Y. 138; 13 Wend. 627; 1 
 
 Duer, 241; 1 McCord, 447; 12 Ga. 224; Irish 
 
 Rep. 13 C. L,. 546; 3 E. D. Smith, 333; 4 Gill, 
 
 423; 11 Pick. 112; L. R. 5 Q. B. 194; 15 111. 469; 
 
 16 Barb. 116, 117; 9 Mete. 9; 11 Gratt. 715; 23 
 
 N. H. 284. U 2 Moo. & S. 623. 
 
 Cincinnati etc. R. Co. v. Cole, 29 Ohio 
 
 St. 126. pp. 341, 573. 
 Cincinnati etc. R. Co. v. Marcus, 38 lU. 
 
 219. pp. 510, 511, 512, 520. 
 
 C 73 111. 352 ; 56 111. 295 ; 66 111. 479. d 73 lU. 
 867. 
 Cincinnati etc. R. Co. v. Pontius, 19 
 
 Ohio St. 221. p. 387. 
 Citizens' Bank v. Nantucket Steamboat 
 
 Co., 2 Story, 32. p. 176. 
 Citizens' Street R. Co. v. Carey, 56 Ind. 
 
 396. p. 442. 
 City of Brussels (The) , 6 Ben. 370. pp. 
 
 475, 544, 546. 
 City of Hartford (The) and The Unit, 
 
 11 Blatchf. 290. p. 487. 
 Civil-Rights Bill (The), 1 Hughes, 541. 
 
 pp. 347, 348. 
 Clapp V. Hudson River R. Co., 19 Barb. 
 
 461. pp. 577, 583. 
 
 Clark??. Barrington,41N. H.44. p. 220. 
 c 22 Wis. 680 ; 29 Wis. 304 ; 51 Me. 140 ; 43 N. 
 H. 26S; 11 N. H. 321; 42 X. H. 213, 215; 13 
 Hun, 86; 48 N. H. 316. 
 
 Clark V. Board of Directors, 24 Iowa, 
 
 267. p. 349. 
 Clark V. Burns, 118 Mass. 275, pp. 472, 
 
 518. 
 
 c 19 Alb. L. J. 114. 
 Clark V. Eighth Avenue R. Co., 32 Barb. 
 
 657; s. c. 7 Bosw. 122; 36 N. Y. 135. 
 
 pp. 260, 261, 263, 445. 
 
 c67 N". Y. 55,597; 1 Sweeny, 498; 8 Hun, 
 498. 
 
 Clark V. Faxon, 20 Wend. 153. p. 526. 
 Clark V. Gray, 4 Esp. 177. p. 491. 
 Cleveland v. New Jersey Steamboat 
 
 Co., 68 N. Y. 306 ; s.c.5 Hun, 523 ; 4 
 
 Abb. N. C. 462. pp. 43, 464, 473. 
 Cleveland etc. R. Co. v. Bartram, 11 
 
 Ohio St. 457. pp. 70, 329, 343. 
 
 C 50 Ind. 144 ; 2 Cent. L. J. 830 ; 6 Reporter, 
 490; 47 Iowa, 86; 10 Ch. Leg. N. 78; 5 Baly, 
 51 ; 71 Pa. St. 436, 437 ; 55 Ind. 372 ; 34 Md. 636 ; 
 32 Iowa, 536; 56 Ala. 252. 
 Cleveland etc. R. Co. v. Curran, 19 
 
 Ohio St. 1. pp. 46, 387, 388, 401. 
 
 c 17 How. 369, 370; 47 Ind. 486; 5 Neb. 121; 
 20 Minn. 130. 
 Cleveland etc R. Co. ■». Manson, 30 Ohio 
 
 St. 451. p. 265. 
 Cleveland etc. R. Co. v. Terry, 8 Ohio 
 
 St. 570. p. 284. 
 Clussman v. Long Island etc. R. Co., 
 
 9 Hun, 61. pp. 51, 107. 
 Clymer v. Central R. Co., 5 Blatchf. 
 
 317. pp. 417, 418. 
 Cockle V. London etc. R. Co., 41 L. J. 
 
 (C. P.) 140; s. c. L. R. 7 C. P. 321 ; 
 
 20 Week. Rep, 754; 27 L. T. (N. s.) 
 
 320; 39 L. J. (C. P.) 226; L. R. 5 
 
 C. P. 457; 18 Week. Rep. 759; 22 
 
 L. T. (N. s.) 513. pp. 229, 231, 232, 
 
 233, 268. 
 
 c 28 Mich. 453; 2 Q. B. Div. 87; 2 Exch. 
 Div. 252; 44 L. J. (Q. B.) 113; L. R. 10 Q. B. 
 273; Irish Rep. 7 C. L. 45; 40 L. J. (Q. B.) 
 191 ; L. R. 6 Q. B. 382, 384 ; 43 L. J. (Q. B.) 162 ; 
 L. R. 9 C. P. 132 ; 43 L. J. (C. P.) 139; 36 Upper 
 Canada Q. B. 371. «I 43 L. J. (Q. B.) 11, 12; 
 L. R. 9 Q. B. 71. 
 Coger V. North-Western Union Packet 
 
 Co., 37 Iowa, 145. p. 349. 
 
 d 05 U. S. 508. 
 
 Coggs V. Bernard, 2 Ld. Raym. 909. 
 pp. 34, 40, 41, 128, 132, 137, 150, 402, 
 493, 521.
 
 xxu 
 
 TABLE OF CASES CITED. 
 
 Cohen v.Dry Dock R. Co., 69 N. Y. 
 
 170. pp. 368, 371, 374. 
 Coheu V. Frost, 2 Duer, 335. pp. 472, 
 
 51S. 
 
 c 19 Wis. 42; 1 Daly, 153, 154. ? 15 Mich. 
 133. 
 Cohen v. South-Eastern R. Co., 2 Esch. 
 
 Div. 253; s. c. 1 Exch. Div. 217. p. 
 
 526. 
 
 c 3 C. P. Div. 225 ; 18 Alb. L. J. 33; 2 App. 
 Cas. 804, SOT. 
 Cole V. Goodwin, 13 Wend. 251. pp. 
 
 5, 236, -SSI, 410, 418, 436, 526, 582. 
 
 c 15 Mich. 127, 133 ; 30 N. Y. 615 ; 4 Bosw. 
 233, 238; 17 How. 361; 47 Ind. 486; 10 N. H. 
 4S8; 7 HUl, 563; 25 N. Y. 461; 11 Cush. 99; 34 
 N. Y. 551; 21 Weud. 361; 29 Barb. 47, 49; 49 
 Barb. 155; 11 N. Y. 490; ^6 Ind. 245; 16 Pa. St. 
 77, 78; 45 Barb. 119; 10 Ohio St. 70; 14 Barb. 
 526; 66 III. 477; 21 Ga. 539; 1 Woods, 517; 4 
 Sandf. S. 0. 142, 144 ; 2 Ohio St. U6 ; 2 Hill, 624 ; 
 23 Vt. 205 ; 16 Vt. 61 ; 13 111. 750; 1 Daly, 199; 1 
 E. D. Smith, 99; 29 Iowa, 361; 3 HUl, 20; 39 
 Iowa, 249. 
 Colegrove v. New York etc. R. Co., 6 
 
 Duer, 382; s. c. 20 N. Y. 492. pp. 
 
 260, 263, 290, 545. 
 
 c 32 N. Y. 601 ; 11 Abb. Pr. (N. S.) 420 ; 35 K. 
 Y. 25; 34N. Y. 677; 35 Pa. St. 129; 46 Barb. 
 269, 270 ; 2 Jones & Sp. 12 ; 65 Barb. 154 ; 2 Ben. 
 237; 11 Abb. Pr. (x. S.) 4:33; 8 Bosw. 354; 43 
 Wis. 527 ; 6 Cent. L. J. 430 ; 64 X. Y. 147 ; 46 Pa. 
 St. 161 ; 56 N. Y. 205 ; 38 N. Y. 262 ; 4 Am. L. 
 Beg. (N. S.) 19 ; 51 111. 498. ? 6 Robt. 87. 
 Coleman v. New York etc. R. Co., 106 
 
 Mass. 160. pp. 317, 339, 375. 
 
 C 36 Wis. 463, 675. 
 
 Coleman v. South-Eastern R. Co., 4 
 
 Hurl. & Colt. 699. p. 264. 
 Collett V. London etc. R. Co., 15 Jur. 
 
 1053; s.c. 20 L. J. (Q. B.) 411; 16 
 
 Q. B. 984. p. 45. 
 
 c 51 Pa. St. 326; 34 Upper Canada Q. B. 
 459, 462; 19 Ohio St. 13 ; 6 So. Car. 139; 37 Mo. 
 549. 
 Collins V. Albany etc. R. Co., 12 Barb. 
 
 492. pp. 261, 267, 557, 582. 
 
 C 37 Mo. 264; 42 Miss. 629. d 24 Ga. 365. 
 Collins V. Boston etc. R. Co., 10 Cush. 
 
 506. p. 511. 
 
 c 73 111. 353, .358; 41 Miss. 678; 7 Reporter, 
 622; 98 Mass. 84; Hun, 547; 44 X. H. 330, 
 331; 106 Mass. 148; 33 Ind. 382. 
 Colt V. McMechen, 6 Johns. 160. p. 
 
 492. 
 
 Columbia etc. R. Co. v. Farrell, 31 Ind. 
 
 408. pp. 231, 268. 
 Columbus etc. R. Co. v. Arnold, 31 Ind. 
 
 182. pp. 48, 222. 
 
 e 46 Texas, 538, 5.50; 2 Col. 488 ; 5 Kan. 650; 
 8 Cent. L. J. 14; 58 Ind. 28. ? 49 Cal. 130. 
 
 Columbus etc. R. Co. v. Powell, 40 Ind. 
 
 37. pp. 227, 228, 267, 270. 
 
 c 50 Ind. 144; 5 Cent. L. J. 830. 
 Commonwealth (The), v. Power, 7 
 
 Mete' 596. pp. 7, 26, 314, 317, 350, 
 
 364, 377. 
 
 c31 Ark. 51; 15 Mich. 132; 15 Gray, 24; 3 
 Park. Cr. Cas. 237; 5 Ch. Leg. N. 535 ; 36 Wis. 
 459, 463 ; 29 Vt. 163 ; 53 Me. 283 ; 7 Iowa, 208 ; 15 
 Minn. 53; 15 Gray, 450; 36 Wis. 672, 673; 24 
 Conn. 260; 15 N. Y. 463; 18 Int. Rev. Rec. 55; 
 11 Blatchl. 235, 236; 95 U. S. 502; 59 Pa. St. 
 141. 
 Commonwealth (The) v. Vermont etc. 
 
 R. Co., 108 Mass. 7. p. 46. 
 Connolly v. Warren, 106 Mass. 146. p. 
 
 512. 
 Cooley V. Norton, 4 Cush. 93. p. 558. 
 Cooper V. Iowa etc. R. Co., 44 Iowa, 
 
 134. p. 224. 
 Cooper V. London etc. R. Co., 27 Week. 
 
 Rep. 474. p. 69. 
 Copeland v. New England Ins. Co., 22 
 
 Pick. 138. p. 564. 
 Coppin V. Braithwaite, 8 Jur. 875. pp. 
 
 20, 303, 375, 465, 466. 
 
 c 5 Wall. 615. 
 Corbin v. Adams, 6 Cush. 95. p. 558. 
 Corbin v. Leader, 10 Bing. 275; s. c. 3 
 
 Moo. & P. 751; 6 Car. & P. 32. p. 
 
 468. 
 Cornnian v. EasteiTi Counties B. Co., 
 
 4 Hurl & N. 781 ; s. c. 29 L. J. (Exch.) 
 
 94; 4 Jur. (n. s.) 657. pp. 83, 87, 
 
 90, 101, 105. (In full, p. 76.) 
 
 c 26 Iowa, 145; 37 L. J. (Exch.) 107; 
 L. R. 3 Exch. 149; 8 C. B. (N. s.) 572; 7 Jur. 
 (N. S.) 169; 39 L. J. (C. P.) 335; 6 Hurl. & N. 
 569; 6 Cent. L. J. 427; 36 L. J. (0. P.) 23; 48 
 Me. 296. «1 5 Hun, 527. 
 Costello V. Landwehr, 28 Wis. 522. p. 
 
 562. 
 Corwin v. New York etc. R. Co., 13 N. 
 
 Y. 42. p. 222. 
 
 c20 Iowa, 193; 37 Barb. 518, 519; 27 N. Y. 
 273, 275; 25 Iowa, 142; 32 Iowa, 562; 16 Ind. 
 104; 12 Gray, 59; 1 Hun, 380; 3 N. Y. S. C. (T. 
 & C.) 639; 34 N. Y. 432; 67 N. Y. 157; 4 Hun,
 
 TABLE OF CASES CITED. 
 
 XXIU 
 
 764: 42 Mo. IHT; 20 Wis. 257; 43 Wis. 681, 683; 
 27 Barb. 228, 229; 2 Hilt. 498; 98 Mass. 564; 3 
 Eeyes, 201 ; 55 Barb. 533; 12 Ind. 5,. 7; 43 N. 
 Y. 507; 2 X. Y. S. C. (T. & C.) 586; 28 Mich. 
 515 ; 26 N. Y. 432 ; 35 N. Y. 643, 645 ; 4 Keyes, 
 131, 134; 4 Abb. App. Dec. 292, 352, 355; 13 
 Hun, 669; 10 Ind. .39; 16 Kan. 576; 13 Wis. 
 639; 37 Barb. 198; .32 Barb. 575; 20 Wis. 257; 
 29 Barb. 649; 21 Ohio St. 594; 18 Cal. 355; 2 
 N. Y. S. C. (T. & C.) 389. 
 Cory V. Carter, 48 Ind. 327. p. 349. 
 Crafter V. Metropolitan B. Co.., 1 Harr. 
 
 164; s. c. L. R. 1 C. P. 300; 12 Jur. 
 
 (N. 8.) 272; 35 L. J. (C. P.) 132; 14 
 
 Week. Rep. 334. pp. 101, 105, 473. 
 
 (In full, p. 88.) 
 
 c 26 Iowa, 145; 28 Mich. 454; 52 N. H. 415. 
 d 5 Hun, 528. 
 Craig V. Great Western R. Co., 24 
 
 Upper Canada Q. B. 504. pp. 70, 
 
 377. 
 
 c 24 Upper Canada Q. B. 516. 
 Craker v. Chicago etc. R. Co., 36 Wis. 
 
 657. pp. 363, 364, 368, 369, 571, 575, 
 
 581. 
 
 c 44 Iowa, 318, 322 ; 39 Wis. 641 ; 42 Wis. 29, 
 €G6, 667, 672, 674, 675, 676, 678; 9 Hun, 673; 42 
 Wis. 29; 9 Ch. Leg. N. 316. 
 Cram v. Metropolitan R. Co., 112 Mass. 
 
 38, p. 444. 
 Cramer v. Burlington, 42 Iowa, 315. 
 
 p. 271. 
 CraAA'ford v. Cincinnati etc. R. Co., 26 
 
 Ohio St. .580. pp. 69, 376. 
 
 C 29 Ohio St. 219. 
 
 Creed v. Pennsylvania R. Co., 86 Pa. 
 
 St. 139. pp. 51, 52, 345. 
 Cregin v. Brooklyn etc. R. Co., 75 N. 
 
 Y. 192. pp. 544, 546. 
 Crissey v. Hestonville etc. R. Co., 75 
 
 Pa. St. 83. pp. 268, 443, 445, 562, 
 
 563. 
 Crocheron v. North Shore etc. Ferry 
 
 Co., 56 N. Y. 656. pp. 101, 209, 473. 
 
 c 68 X. Y. 310, 313 ; 5 Hun, 527. 
 Crocker v. New London etc. R. Co., 24 
 
 Conn. 249. pp. 341, 342, 376. 
 
 c7 Phila. 13; 15 N. Y. S. C. (T. & C.) 582; 7 
 Iowa, 209; 7 I'.osw. 136; 19 111. 374; 36 Conn. 
 291. 7 15 Minn. 56. o 19 111. 364. 
 Croft V. Alison, 4 Barn. & Aid. 590. p. 
 
 358. 
 Croft V. Baltimore etc. R. Co., 1 Mc- 
 
 Arthur, 492. pp. 432, 436. 
 
 Crofts V. Waterhouse, 11 J. B. Moo. 
 133; s. c. 3 Bing. 319. pp. 114, 115, 
 117, 119, 130, 133, 153, 155, 199, 236, 
 237, 238, 355, 403, 453. 
 c 3 Cliff. 420; 21 Md. 286, 297; 48 N. H. 312; 
 
 4 Iowa, 548; L. R. 4 Q. B. 388, 389; 8 Best & 
 S. 379, 383; L. R. 2 Q. B. 419, 423; 6 L. J. (Q. 
 B.) 185, 187; 11 Gratt. 11; 109 Mass. 405; L. R. 
 
 5 Q. B. 195. d 9 Mete. 7, 10. 
 
 Crogan v. New York etc. R. Co., 18 
 
 Alb. L. J. 70. pp. 199, 206. 
 Crosby v. Maine etc. R. Co., 69 Me. 
 
 418; s. c. 8 Reporter, 819. »p. 69. 
 Crozier v. Boston etc. R. Co., 43 How. 
 
 Pr. 466. p. 531. 
 Crystal Palace (The) v. Vanderpool, 16 
 
 B. Mon. 302. p. 518. 
 Cully V. Baltimore etc. R. Co., 1 Hughes, 
 
 536. pp. 347, 377. 
 Cumberland Valley etc. R. Co. v. Myers, 
 
 55 Pa. St. 288. pp. 49, 52. 
 Cunningham v. Grand Trunk R. Co., 9 
 
 Lower Canada Jur. 57. p. 71. 
 
 c 24 Upper Canada Q. B. 518. 
 Curran v. Cheeseman, 1 Cin. Superior 
 
 Ct. 52. pp. 480, 554. 
 Curran v. Warren etc. Man. Co., 36 N. 
 
 Y. 153. p. 553. 
 Curtis V. Avon etc. R. Co., 49 Barb. 
 
 148. pp. 536, 538, 
 
 c 57 X. Y. 559. 
 
 Curtis V. Delaware etc. R. Co., 74 N. Y. 
 
 116. pp. 512, 534. 
 Curtis V. Detroit etc. R. Co., 23 Wis. 
 
 152; s. c. 27 Wis. 158. p. 225. 
 Curtis V. Drinkwater, 2 Barn. & Adol. 
 
 169 ; s. c. 22 Eng. Com. Law, 51. pp. 
 
 199, 240. 
 
 c8 Pa. St. 484; 4 GiU, 421; 13 Vt. 325; 13 
 Conn. 325. 
 Curtis V. Grand Trunk etc. R. Co., 12 
 
 Upper Canada C. P. 89. pp. 338, 375. 
 Ciirtis V. Bochester He. R. Co., 18 N. Y. 
 
 534; s. c. 20 Barb. 282. pp. 211, 214. 
 
 (In full, p. 188.) 
 
 c 2 Col. 457 ; 33 Iowa, 269 ; 44 Miss. 484, 496, 
 500, .'iOl ; 1 Daly. 207 ; 34 Barb. 267 ; 24 X. Y'. 218, 
 219; 48 X. Y'. 211; 3 Jones & Sp. 130; 2 Ben. 
 239; 28 X. Y. 225; 35 Barb. 199; 39 X. Y. 229; 
 11 Wall. 134. 
 Curtissv. Rochester etc. II. Co., 20 Barb. 
 
 282. (See Curtis v. Rochester etc.
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 K. Co., 18 N. Y. 534.) pp. 551, 564, 
 569, 571. 
 
 D. 
 
 Dale V. Brooklyn City R. Co., 1 Hun, 
 
 146. pp. 444, 565. 
 Dale V. Hall, 1 Wils. 281. pp. 132, 452. 
 Daley v. Norwich etc. R. Co., 26 Conn. 
 
 591. p. 293. 
 Dallas V. Fosdick, 40 How. Pr. 249. 
 
 p. 349. 
 Dalyell v. Tyrer, 28 L. J. (Q. B.) 52. 
 
 p. 285. 
 Damont v. New Orleans etc. R. Co., 9 
 
 La. An. 441. pp. 227, 228, 267. 
 
 c 23 La. An. 464. 
 Daniel v. Metropolitan R. Co., L. R. 5 
 
 H. L. 45; 37 L. J. (C. P.) 280. pp. 
 
 208, 562. 
 
 c 8 Hun, 602; L. R. 9 Exch. 161; 43 L. J. 
 (Exch.) 107. 
 Daniel Ball (The), 10 Wall. 557. p. 
 
 481. 
 Dansey v. Richardson, 3 El, & Bl. 144. 
 
 p. 531. 
 Danville etc. Turnpike Co. v. Stewart, 
 
 2 Mete. (Ky.) 119. p. 290. 
 Dascomb v. Buffalo etc. R. Co., 27 
 
 Barb. 221. p. 562. 
 David V. Moore, 2 Watts & S. 230. p. 
 
 538. 
 
 C 1 Hilt. 282. 
 
 Davidson v. Graham, 2 Ohio St. 131. 
 
 pp. 387, 393, 525, 526. 
 Davies v. Mann, 10 Mee. & W. 546; s.c. 
 
 2 Thomp. on Neg. 1105. pp. 251, 
 
 257, 276, 278. 
 
 c 6 Gra.v, 72 ; 6 Ohio St. 109 ; 2 0. B. (N. s.) 
 756; 4 Ind. 98; 2 Sawyer, 29; 6 Oent. L. J. 46; 
 45 Md. 491 ; 16 Pa. St. 466 ; 22 Vt. 223 ; L. R. 4 
 C. P. 621 ; 19 Conn. 576 ; 18 N. Y. 258 ; 8 La. An. 
 324; 17 Barb. 97; 6 Iowa, 452; 38 Ala. 85,86; 
 10 Ch. Leg. X. 121; 1 Handy, 202; 20 111. 494; 
 L. R. 9 Exch. 74 ; 52 N. H. 553, 554 ; 5 El. & 
 Bl. 202; 43 L. J. (Exch.) 75; L. R. 10 Exch. 
 107 ; 44 L. J. (Exch.) 78, 93 ; 1 App. Gas. 759 ; 9 
 ■\Vi8. 218; 31 Miss. 193; 15 Q. B. 283; 27 Conn. 
 406; 5 Duer. 27; 5 Hun, 480; 3 Ohio St. 1!)4; 
 44 Md. 127; 24 Vt. 495; 6 Ind. 145; 13 Ga. 88; 
 24 X. J. L. 270, 283 ; 45 Iowa, 32 ; 37 Cal. 423 ; 23 
 X. J. L. 189; 12 C. B. (N. S.) 9; 10 C. B. (N. s.) 
 575; 29 Md. 436; 15 Ind 489; 95 U. S. 442; 3 
 liich. L. 126; 52 Mo. 439; 2 Col. 159; 37 Mo. 
 650. 
 
 Davis V. Cayuga etc. R. Co., 10 How. 
 Pr. 330. pp. 42, 513, 514. 
 C 30 X'. Y. 617. 
 
 Davis V. Great Western etc. R. Co., 20 
 
 Upper Canada Q. B. 27. pp. 65, 376. 
 Davis V. Kansas City etc. R. Co., 53 
 
 Mo. 317. pp. 67, 224, 259. 
 Davis V. London etc. R. Co., 2 Post. & 
 
 Fin. 588. p. 105. 
 Davis V. Michigan etc. R. Co., 20 HI. 
 
 407 ; s. c. 22 111. 278. pp. 511, 513, 514, 
 
 538. 
 
 c 30 X. Y. 612; 22 111. 214; 15 Mich. 127; 78 
 HI. 617, 618; 24 111. .336. 
 
 Dawson v. Manchester etc. R. Co., 7 
 
 Hurl. & N. 1037. p. 212. 
 Day V. Brooklyn etc. R. Co., 12 Hnn^ 
 
 435. pp. 293, 445. 
 Day V. Oicen, 5 Mich. 520. pp. 28, 29, 
 
 314, 316, 317, 335, 346, 348. (In full, 
 
 p. 306.) 
 
 c 36 Wis. 459, 460, 462, 463, 672; 37 Mich. 
 344; 46 X. H. 219,223. 
 
 Day V. Woodworth, 13 How. 363. p. 
 
 573. 
 Dearden v. Townsend, L. R. 1 Q. B. 
 
 10; s.c. 12 Jur. (x. s.) 120; 14 Week. 
 
 Rep.52; 13 L.T. (x.s.) 323. p. 337. 
 
 c 3 C. P. Div. 433; Irish Rep. 3 0. L. 526; 
 Irish Rep. 1 C. L. 135, 144, 140, 152, 158, 159. 
 De Beuedetti v. Mauchin, 1 Hilt. 213. 
 
 p. 553. 
 
 c 43 Vt. 206. 
 
 De Cuir v. Benson, 27 La. An. 1. p. 
 
 346. 
 Delhi V. Woodruff, 10 Cent. L. J. 66. 
 
 pp. 531, 532. 
 DelamartjT v. Missouri etc. R. Co., 24 
 
 Wis. 578. pp. 229, 233, 268. 
 
 c 30 Ohio St. 234, 235. 
 
 Del Valle v. Str. Richmond, 27 La. An. 
 
 90. pp. 510, 518. 
 Dennis v. Clark, 2 Cash. 347. p. 547. 
 Dennison v. The Wataga, 1 Phila. 468. 
 
 pp. 466, 467. 
 Demiy v. New York etc. R. Co., 5 Daly, 
 
 50. p. 70. 
 Denton v. Great Northern E. Co., 5 El. 
 
 & Bl. 860; s. c. 2 Jur. (x. s.) 185; 25 
 
 L. J. (Q. B.) 129 ; 34 Eng. Law & Eq. 
 
 154. pp. 66, 67. (In full, p. 53.) 
 
 c 52 N. H. 600, 604; 19 C. B. (N. S.) 319; 14
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 AUen, 437; 34 L. J. (0. P.) 266; 11 Jur. (N. S.) 
 
 731,732; 3 Xeb. 54. 
 
 Derwort v. Loomer, 21 Conn. 245 ; s. c. 
 
 1 Am. L. Reg. 479. pp. 205, 242, 
 
 563. 
 
 c 48 N. H. 315 ; 11 Gratt. 712. 
 Detroit etc. R. Co. v. Van Steinburg, 
 
 17 Mich. 99. pp. 552, 563, 
 Dexter v. Syracuse etc. R. Co., 42 N. 
 
 Y. 326. pp. 510, 512. 
 
 c 6 Hun, 547; 9 Ilun, 671. 
 Deyo V. New York etc. R. Co., 34 N. Y. 
 
 9. pp. 214, 553. 
 
 c 36 N. Y. 381 ; 4 Daly, 488; 5 Hun, 526. 
 Dibble v. Brown, 12 Ga. 217; s. c. 2 
 
 Am. L. Reg. 317. pp. 510, 511, 512, 
 
 514, 521, 522, 538, 539. 
 
 C 9 Hun, 671 ; 25 Ga. 64. 
 Dickens v. New York etc. R. Co., 28 
 
 Barb. 41 ; s. c. 1 Abb. App. Dec. 504. 
 
 pp. 226, 270, 563. 
 
 C 1 Biss. 415. 
 Dickey v. Maine Tel. Co., 46 Me. 483. 
 
 p. 552. 
 Dickinson v. Colter, 45 Ind. 445. p. 
 
 558. 
 Dietrich v. Pennsylvania R. Co., 71 Pa. 
 
 St. 432. pp. 70, 71, 377. 
 
 c 72 Pa. St. 235; 52 Ind. 546; 6 Reporter, 
 490; 47 Iowa, 86; 10 Oh. Leg. N. 78; 51 Cal. 
 428; 13 Hun, 362; 76 Pa. St. 73; 55 Ind. 372; 54 
 N. Y. 516. 
 Dill V. South Carolina R. Co., 7 Rich, 
 
 L. 158. p. 521. 
 
 c 21 Gratt 669. 
 Dillaye v. New York etc. R. Co., 56 
 
 Barb. 30. pp. 109, 235, 269, 
 Dillon V. Union Pacific R. Co., 3 Dill. 
 
 319. p. 553. 
 
 c 119 Mass. 414; 7 Reporter, 61. 
 Dininny v. New York etc. R. Co., 49 N. 
 
 Y. 546. p. 534. 
 
 C 57 N. Y. 556. 
 
 District v. Saville, 9 Am. L, Rev. 584. 
 
 p. 347. 
 Ditcham v. Chivis, 1 Moo. & P. 735; 
 
 s. c. 4 Bing. 706. p. 555. 
 Ditchett V. Spuyten Duyvil etc. R. Co., 
 
 5 Hun, 105. p. 271. 
 Doe V. Benjamin, 9 Ad. & E. 644, p, 
 
 554. 
 Doggett V. Illinois etc. R. Co., 34 Iowa, 
 
 284, pp. 252, 265. 
 
 Donnell v. The State, 48 Miss. 661. p. 
 
 347. 
 Doorman v. Jenkins, 2 Ad. & E. 261 ; 
 
 s. c. 4 Nev. & M. 174. p. 75. 
 Dorr V. New Jersey Steam Nav. Co., 11 
 
 N. Y. 485; s. c. 4 Sandf. 8. C, 136. 
 
 pp. 382, 394. 
 Doss V. Missouri etc. R. Co., 59 Mo. 
 
 27 ; s. c. 21 Am. Rep. 371 ; 2 Cent. L. 
 
 J. 539. pp. 50, 225, 226, 227, 267, 575. 
 Dougan v. Champlain Transp. Co., 56 
 
 N. Y. 1, pp. 217, 266, 473, 476, 487, 
 
 543. 
 
 c 58 N. Y. 143. 
 Dougherty v. Chicago etc. R. Co,, 86 
 
 111. 407. pp. 227, 228, 267. 
 Downs V. New York etc. R. Co., 36 
 
 Conn. 287. pp. 69, 336, 338. 
 
 c 37 Micb. 346. d 28 Conn. 560. 
 Doyle V. Kiser, 6 Ind. 243. pp. 511, 
 
 513, 522, 538. 
 
 c 8 Bush, 474; 30 N. Y. 612; 41 Miss. 679; 3a 
 Ind. 382. 
 D. R. Martin (The), 11 Blatchf. 233; 
 
 s. c. 18 Int. Rev. Rec. 55. pp. 29, 351. 
 Dressier v. Davis, 7 Wis. 527. pp. 652, 
 
 553. 
 Drew V. Central Pacific R. Co., 51 Cal. 
 
 425. pp. 70, 377. 
 Drew V. Sixth Avenue R. Co., 26 N. Y. 
 
 49. p. 370. 
 Dryden v. Grand Trunk R. Co., 60 Me. 
 
 512. p. 70. 
 D. S. Gregory (The), 2 Ben. 226, pp, 
 
 565, 572, 574. 
 Dublin etc. R. Co. v. Slattery, 3 App. 
 
 Cas. 1155; s. c. Irish Rep, 10 C, L, 
 
 256. pp. 234, 269, 562. 
 Dudley v. Smith, 1 Camp. 167. pp. 
 
 114, 237, 451. 
 
 c 8 Pa. St. 484 ; 46 N. H. 224 ; 28 Ind. 444. 
 Duff V. Great Northern R. Co., 41 L. 
 
 T. (N. 8.) 197 ; s. c. 20 Alb. L. J, 398, 
 
 pp.400, 401. 
 Duffy V. Thompson, 4 E. D. Smith, 178. 
 
 pp. 511,512, 513. 
 
 c 30 N. Y. 612, 617 ; 4 E. D. Smith, 458. 
 Duke V. Great Western R. Co., 14 Up- 
 per Canada Q. B. 369. pp. 336, 376. 
 
 c 12 Upper Canada C. P. 93 ; 48 Vt. 236. 
 Du Laurans v. First Division St. Paul
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 etc. E. Co., 15 Minn. 49. pp. 335, 
 
 341, 342, 376, 575, 577, 588. 
 Dunlap V. International Steamboat Co., 
 
 98 Mass. 371. pp. 485, 511, 518, 530. 
 
 c 73 ni. 355, 357 ; 106 Mass. 648 ; 9 Hun, 671 ; 
 7 Reporter, 623. 
 Dunn V. Grand Trunk B. Go., 58 Me. 
 
 187. pp. 52, 344, 345, 445. (In full, 
 
 p. 328.) 
 
 c .33 Wis. 54, 63; 59 Ind. 333; 20 Minn. 134; 
 56 Ala. 252; 57 X. Y. 391, 392; 15 Alb. L. J. 62. 
 d 64 Mo. 475. ? 49 Texas, 48. 
 Dunphy v. Erie R. Co., 10 Jones & Sp. 
 
 128. p. 70. 
 Durant v. Palmer, 29 N. J. L. 544. p. 
 
 552. 
 
 c 32 N. J. L. 168 ; 33 N. J. L. 264, 438. 
 Dwight V. Brewster, 1 Pick. 50. p. 
 
 501. 
 Dyer v. Talcott, 16 111. 300. p. 552. 
 Dysart v. Montgomery, Irish Rep. 8 C. 
 
 L. 245. p. 474. 
 
 E. 
 
 East India Co. v. Pullen, Stra. 690. pp. 
 
 515, 516. 
 East Saginaw Street R. Co. v. Bohn, 
 
 27 Mich. 503. pp. 291, 345, 445. 
 Eastern Counties R. Co. v. Broom, 6 
 
 Exch. 314; s. c. 20 L.J. (Exch.) 196. 
 
 pp. 373, 545. 
 
 C 30 L. J. (Q. B.) 150, 152; 3 El. & El. 678, 
 683 ; L. R. 3 C. P. 643 ; Irish Rep. 5 C. L. 16 ; 
 19 111. 373; Irish Rep. 1 C. L. 146; 15 Upper 
 Canada C. P. 440. 
 Eaton V. Boston etc. R. Co., 11 Allen, 
 
 500. p. 291, 
 
 c 97 Mass. 368 ; 5 Hun, 526. 
 Eaton V. Delaware etc. R. Co., 57 N. 
 
 Y. 382. p. 344. 
 
 d 66 N. Y. 619. 
 
 Eckert v. Long Island R. Co., 43 N. Y. 
 
 502 ; s. c. 57 Barb. 555. p. 20. 
 
 c 53 Ala. 57, 58 ; 6 Jones & Sp. 418; 13 Hun, 
 331 ; 68 Me. 556 ; 8 Cent. L. J. 444. 
 Edgertou v. New York etc. R. Co., 39 
 
 N. Y. 227; s. c. 35 Barb. 193. pp. 
 
 212, 234, 333. 
 
 C59 Ind. 233; 47 Ind. 481; 1 Sweeny, 498; 
 63 Barb. 266; 58 Me. 196; 4 Col. 10. 
 Edwards v. Loudon etc. R. Co., L. R. 
 
 5 C. P. 445. pp. 371, 372. 
 
 c L. R. 6 Q. B. 70, 71. 
 
 Edwards v. Lord, 49 Me. 279. p. 200. 
 
 c 56 Me. 241 ; 48 N. H. 315. 
 Eldridge v. Long Island R. Co., 1 Sandf . 
 
 S. C. 89. pp. 267, 548. 
 
 c 24 Ga. 366. 
 Elizabethport etc. Ferry Co. v. United 
 
 States, 5 Blatchf. 198. p. 481. 
 Elliott V. Rossell, 10 Johns. 1. p. 492. 
 Ellis V. Narragansett Steamship Co., 
 
 Ill Mass. 146. pp. 349, 469. 
 Ellsworth V. Tartt, 26 Ala. 733 ; s. c. 4 
 
 Am. L. Reg. 189. p. 436. 
 
 e 29 Vt. 426; 7 Am. L. Reg. 430; 1 Cent. L. 
 J. 542. 
 Elmore v. Sands, 54 N. Y. 512. pp. 65, 
 
 71, 376. 
 
 c 7 Hun, 142, 146; 13 Hun, 362; 3 Hun, 242; 
 5 Thomp. & C. 557; 7 Hun, 672, 673. 
 Elvira Harbeck (The), 2 Blatchf. 336. 
 
 pp. 471, 520, 521, 522. 
 Empire Transp. Co. v. Wamsutta Oil 
 
 Co., 63 Pa. St. 14. p. 387. 
 English V. Delaware etc. Canal Co., 66 
 
 N. Y. 454; s. c. 4 Hun, 683. p. 374. 
 Erie v. Schwingle, 22 Pa. St. 384. p. 
 
 552. 
 
 c 7 Cent. L. J. 129; 79 Pa. St. 416; 56 Pa. 
 St. 451; 68 P.a. St. 407; 73 Pa. St. 409; 9 Md. 
 178; 91 U. S. 551 ; 2 Disney, 521 ; 21 Iowa, 414; 
 67 Pa. St. 367; 63 Pa. St. 289; 79 Pa. St. 416; 
 32 Iowa, 328; 20 Md. 480; 31 Mich. 122; 122 
 Mass. 376; 71 Pa. St. 158; 17 Minn. 314; 26 
 Iowa, 268; 1 Black, 53; 16 WaU. 574. ? 4 
 Mich. 562. 
 Ernst V. Hudson etc. R. Co., 35 N. Y. 
 
 9 ; s. c. 39 N. Y. 61 ; 32 Barb. 159 ; 32 
 
 How. Pr. 262; 119 How. Pr. 205. 
 
 c 3 Daly, .383; 34 N. Y. 6.33; 40 N. Y. 11, 31; 
 14 Abb. Pr. (n. S.) 30; 43 Mo. 194; 39 N. Y. 
 362, 363; 33 Ind. 360; 39 N. J. L. 193, 194; 34 
 Iowa, 158, 160; 34 How. Pr. 249; 4 Robt. 346; 
 7Robt. 616; 49 Barb. 531, 533, 535; 3 Keyes, 
 479; 1 Abb. App. Dec. 438; 7 Hun, 560,562; 
 1 Wils. (Indianapolis), 491; 6 Hun, 466; 37 N. 
 Y. 574; 17 Mich. 118, 123; 34 Iowa, 279; 21 
 Minn. 295; .'iO lud. 45; 32 Wis. 275; 20 .Mich. 
 166; 45 N. Y. 664; .54 N. Y. 471; 38 N. Y. 442, 
 443; 40 Barb. 210; 39 How. Pr. 414, 423; 7 Lans. 
 13 ; 42 X. Y. 473 ; 41 N. Y. 299 ; 26 Wis. 255 ; 38 
 N. Y. 51; 2 Lans. 437; 43 Mo. 262; 44 Mo. 294; 
 25 Mich. 295; 1 N. Y. S. C. (T. & C.) 246; 38 
 N. Y. 449 ; 44 N. Y. 469, 474. 477 ; 2 Jones & Sp. 
 486 ; 43 How. Pr. 411 ; 21 Ohio St. 593 ; 36 N. Y. 
 133, 134. 
 Evans v. Memphis etc. R. Co., 56 Ala. 
 
 246. p. 343.
 
 TABLE OF CASES CITED. 
 
 XXVll 
 
 Evansville etc. R. Co. v. Baum, 26 lud. 
 
 70. pp. 3(i(3, 368, 549. 
 
 c 57 Me. 239, Ua ; 51 Ind. US. 
 Evansville etc. R. Co. v. Dexter, 24 
 
 Ind. 411. p. 552. 
 Evansville etc. R. Co. v. Duncan, 28 
 
 Ind. 441. pp. 29, 268. 
 
 C 55 I nd. 372. «1 44 Miss . 487. 
 Evansville etc. R. Co. v. Hiatt, 17 III. 
 
 102. p. 552. 
 Express Co. v. Kountze Brothers, 8 
 
 Wall. 342. p. 392. 
 Express Co. v. Sands, 55 Pa. St. 140. 
 
 p. 386. 
 
 Fairchild v. California Stage Co., 13 
 Cal. 599. pp. 199, 205, 211, 238, 571. 
 c 2 Mont. 522, 525, 526; 48 N. H. 316; 6 Nev. 
 
 •2iii, 234. 
 
 Fairfax v. New York etc. R. Co., 5 
 
 Jones & Sp. 516; s. c. 40 N. Y. Supe- 
 rior Ct. 128. pp. 434, 435, 520. 
 Fairmount etc. R. Co. v. Stutler, 54 Pa. 
 
 St. 375. pp. 227, 546. 
 
 c 57 Barb. 651. 
 Falkiner v. Great Southern R. Co., Irish 
 
 Rep. 5 C. L. 213. pp. 198, 234. 
 Farewell v. Grand Trunk R. Co., 15 
 
 Upper Canada 'C. P. 427. pp. 71, 
 
 376. 
 
 c 24 Upper Canada Q. B. 517. 
 Fai*nham v. Camden etc. R. Co., 55 Pa. 
 
 St. 53. pp. 386, 387. 
 Faulkner v. Ohio etc. R. Co., 55 Ind. 
 
 369. p. 343. 
 
 c 57 Ind. 579. 
 Parish ■;;. Reigle, 11 Gratt. 697. pp. 
 
 205, 211, 217, 238, 577, 585. 
 
 c 29 Gratt. 445 ; 13 Cal. 603 ; 2 Mont. 525, .526. 
 Farwell v. Boston etc. R. Co., 4 Mete. 
 
 49 ; S.C.2 Thomp. on Neg. 924. p. 33. 
 
 c 3 Col. .501; 25 Md. 479; 29 Conn. 560; 49 
 N. Y. 532; ;0 Mich. 199; 30 Barb. 2.34, 235, 236; 
 34 Conn. 479; 10 Gray, 281 ; 119 Mass. 421 ; 62 
 Mo. 328 ; 2 Midi. 265 ; 42 Md. 418 ; 25 N. Y. 564 ; 
 44 Cal. 82; 2 Hurl. & Colt. Ill ; 9 Jur. (n. s.) 
 ,^02; 32 L. J. (Exch.) 209; 49 Barb. .i77; 8 
 Ohio St. 256; 5 Hun, 493; 27 Md. 601 ; 25 Md. 
 479; 17 N. Y. Ii57; 8 Allen, 444; 11 Iowa, 427; 
 76 111. .397; 8 Kan. 6.50; 22 Ala. 308, 311, 312; 5 
 Best & S. 578 ; 33 L. J. (Q. B.) 264, 268 ; 10 .Jur. 
 (N. 8.) 1076; 59 Pa. -St. 247, 248, 251; 28 Ind. 
 377; 6 Jones I.. 248; 64 Mo. 118; 46 Te.xas,538; 
 
 23 Pa. St. 386; 6 Cush. 76; 4 Gray, 101; 53 Ga. 
 16; 4 Jur. (N. s.) 772; 53 N. Y. 552; 6 Cal. 210; 
 9 Cush. 114; 1 Am. L. Reg. 718; 20 Md. 221, 
 222; 6 Hill, 594; 7 La. An. 324, 332; 43 Me. 270; 
 11 Wis. 254; 14 Minn. 363, 364; 15 111. 551; 21 
 111. 26; 51 Miss. 642; 10 Mich. 199; 43 Mo. 193; 
 3 Ohio St. 212, 215, 223 ; 12 Ohio St. 491 ; 59 Mo. 
 300; 15 Minn. 537; 10 Allen, 237, 238; 10 Cush. 
 231; 3 Cush. 273; 6 Ind, 207, 208; 30 Mo. 116; 
 
 24 Ala. 36; 102 Mass. 583; 5 N. Y. 494, 496; 6 
 Barb. 236,240, 243; 3 Ohio St. 188; 3 Sawyer, 
 442; 20 Ohio, 441,443, 445, 447; 9 Heisk. 869; 
 18 Iowa, 287; 49 Barb. 326; 42 N. H. 236; 49 
 Texas, 189; 28 Ind. 377; 1 Ga. 198; 44 Cal. 82; 
 44 Miss. 485; 1 Woods, 403; 38 Miss. 275; 97 
 Mass. 368; 4 Iowa, 549; 24 N. Y. 220; 11 Wis. 
 254; 58 N. V. 1.34; 20 Ohio, 435; 1 Am. L. Reg. 
 399; 2 Am. L. T. 120; 14 How 489. ? 5 Ind. 
 843, 344, 345, 346, 347 ; 9 Bush, 565 ; 6 Bush 579. 
 Fay v.. Parker, 53 N. H. 342. p. 573. 
 Feltham v. England, L. R. 2 Q. B. 33 ; 
 
 s. c. 4 Post. & Fin. 460; 7 Best & S. 
 
 676. p. 147. 
 
 c 13 Allen, 441 ; 62 Me. 466 ; 64 N. Y. 9, 11 ; 
 32 Md. 418 ; L. R. 1 Sc. App. 339 ; 59 Pa. St/ 252 ; 
 1 Exch. Div. 255; 49 Barb. 326. 
 Pent V. Toledo etc. R. Co., 59 111. 349; 
 
 s. c. 1 Thomp. on Neg. 136. p. 564. 
 
 c 12 Kan. 379; 39 N. J. L. 307, 311 ; 94 U. S. 
 474; 6 Cent. L. J. 313; 80 Pa. St. 379; 85 111. 
 14; 71 in. 574; 57 N. H. 91. 
 Fernandez v. Sacramento R. Co., 4 
 
 Cent. L. J. 82. p. 563. 
 Filer v. New York etc. R. Co., 68 N. Y. 
 
 124; s. c. 49 N. Y. 42; 59 N. Y. 352; 
 
 1 Abb. N. C. 523. pp. 228, 267. 
 
 c 30 Ohio St. 2:M, 236, 237; 67 N. Y. 55; 59 
 Mo. 38 ; 2 Cent. L. J. 541 ; 3 N. Y. S. C. (T. & 
 C.) 45 ; 63 N. Y. 560; 68 N. Y. 127 ; 59 N. Y. 352. 
 Fillebrown v. Grand Trunk R. Co., 55 
 
 Me. 462. p. 66. 
 Fink V. Albany etc. R. Co., 4 Lans. 147. 
 
 p. 66. 
 First National Bank v. Marietta etc. 
 
 R. Co., 20 Ohio St. 259. p. 512. 
 
 c 17 Am. L. Reg. (N. S.) 511, 514; 72 N. Y. 
 58, 62; 9 Hun, 672; 6 Reporter, 55. 
 Fisher v. Geddes, 15 La. An. 14. p. 
 
 532. 
 Fitzpatrick v. New Albany etc. R. Co., 
 
 7 Ind. 436. p. 49. 
 Flaherty v. Grcenman, 7 Daly, 481. 
 
 pp. 514, 524. 
 Fleming v. Brooklyn etc. R. Co., 1 Abb. 
 
 N. C. 433. pp. 46, 293.
 
 XXVlll 
 
 TABLE OF CASES CITED. 
 
 Flemming v. Western Pacific E. Co., 49 
 
 Cal. 253. p. 562. 
 Fletcher v. Boston etc. R. Co., 1 Allen, 
 
 9. pp. 417, 418. 
 Fllnn V. Philadelphia etc. R. Co., 1 
 
 Houst. 469, pp. 27, 45, 234, 369, 401. 
 
 c 17 How. 371; 47 Ind. 486. 
 Flint V. Norwich etc. Transp. Co., 34 
 
 Conn. 554; s. c. 6 Blatchf. 158. pp. 
 
 303, 304, 360, 364. 
 
 c 3 Cliff. 426; 53 Miss. 221 ; 55 N. Y. 113, 118; 
 68 N. Y. 310; 5 Hun, 526; 57 Me. 216; 7 Re- 
 porter, 461. d 17 Am. L. Keg. (N. 8.) 515; 72 
 N. Y. 62 ; 6 Reporter, 56. 
 Flint etc. R. Co. v. Weir, 37 Mich. 111. 
 
 p. 524. 
 Foot V. Wiswall, 14 Johns. 304. p. 562. 
 Forbes v. Davis, 18 Texas, 268. pp. 
 
 513, 515, 545. 
 Ford V. London etc. R. Co., 2 Fost. & 
 
 Fin. 730. pp. 139, 148, 156, 199, 209. 
 
 c 56 Me. 241; 97 Mass. 368; 8 Best & S. 393, 
 404; 36 L. J. (Q. B.) 190, 196; L. R. 2 Q. B. 
 430, 441 ; L. R. 4 Q. B. 389. 
 
 Fordham v. London etc. R. Co., 37 L. 
 
 J. (C. P.) 176 ; s. c. L. R. 3 C. P. 300 ; 
 
 L. R. 4 C. P. 619. p. 264. 
 
 c 100 Mass. 215. 
 Forks Township v. King, 84 Pa. St. 
 
 230. p. 284. 
 Forsyth v. Boston etc. R. Co., 103 
 
 Mass. 510. p. 269. 
 
 C 104 Mass. 141. 
 Fort Wayne etc. R. Co. v. Gildersleeve, 
 
 33 Mich. 133. p. 208. 
 
 C33 Mich. 257; 6 Reporter, 111; 68 Me. 51. 
 Forward v. Pittard, 1 Term Rep. 27. 
 
 pp. 492, 493, 495, 498. 
 Foster v. Dixfleld, 18 Me. 380. p. 552. 
 Foster v. The Essex Bank, 17 Mass. 
 
 479, p. 178. 
 Foulkes V. Metropolitan District R. 
 
 Co., 4 C. P. Div. 267. p. 435. 
 Fowle V. Alexandria, 11 Wheat. 322. 
 
 p. 564, 
 Fox V. Glastenbury, 29 Conn. 204. p. 
 
 552. 
 Foy v. London etc. R. Co., 18 C. B, 
 
 (X, s.) 225; s. c. 13 Week. Rep. 293; 
 
 11 L. T. (N. s.) 606. pp. 229, 268. 
 
 c44 Miss. 487; 28 Mich. 45:i; 44 L J. (Q. 
 B.) 114; L. R. 10 Q. B. 274; L. R. 3 Exch. 157; 
 
 L. R. 4 Exch. 121; 37 L. J. (Exch.) 103; 42 
 Mo. 587 ; 59 Mo. 38 ; 2 Cent. L. J. .541 : 49 N. Y. 
 54. d 39 L. J. (Exch.) 99, 101 ; L. R. 3 Exch. 
 153, 155; L. R. 4 Exch. 122, 1'34, 125. 
 Fraloff V. New York etc. R. Co., 10 
 
 Blatchf. 16, pp. 504, 512, 636, 537, 
 
 547. 
 Francis v. St. Louis Transfer Co., 5 
 
 Mo. App. 7. pp. 566, 570. 
 Freeh v. Philadelphia etc. R. Co,, 39 
 
 Md. 574. p. 552, 
 
 C 43 Md. 552. 
 
 Freeman v. Newton, 3 E. D. Smith, 
 
 246. pp. 514, 529, 530, 547. 
 Frederick v. Marquette etc. R. Co., 37 
 
 Mich. 342. pp. 338, 376, 
 French v. Brunswick, 21 Me. 29. p, 
 
 552. 
 
 c 11 Allen, 320; 42 Me. 527: 45 Ind. 433; 9 
 Hun, 685 ; 35 N.H. 276; 6 Iowa, 452; lCush.447. 
 Frink v. Coe, 4 G. Greene (Iowa), 555. 
 
 pp. 205, 557, 574. 
 
 c 48 N. H. 316. 
 Frink v. Potter, 11 111. 406; s. c. 17 111. 
 
 496. pp. 199, 217, 266, 544, 545, 560. 
 
 C48N. H. 316; 88 III. 614. 
 Fi-ink V. Schroyer, 18 111. 416, p. 564. 
 
 «• 54 111. 24. 
 Frost V. Grand Trunk R. Co., 10 Allen, 
 
 387; s. c. 5 Am. L. Reg. (x. s.) 573, 
 
 pp. 101, 233, 269. • 
 
 c 26 Iowa, 145. 
 Fuller V. Naugatuck R. Co., 21 Conn. 
 
 557. pp. 104, 548, 561. 
 
 c 26 Iowa, 140 ; 48 N. H. 315 ; 19 Ohio St. 235. 
 Fulton V. Grand Trunk R. Co., 17 Upper 
 
 Canada Q. B. 428. pp. 329, 340, 376, 
 
 377. 
 
 c 58 Me. 192, 
 Furstenheim v. Memphis etc, R. Co., 9 
 
 Heisk. 238. pp. 433, 515. 
 
 o 1 Cent. L. J. 542. 
 
 G. 
 
 Gagg V. Vetter, 41 Ind. 228. p. 562. 
 
 c 51 Ind. 154. 
 Gale V. Delaware etc. R. Co., 7 Hun, 
 
 670. pp. 70, 71, 377. 
 
 c 13 Hun, 362. 
 Galena etc. R. Co. v. Fay, 16 111. 558, 
 
 pp. 267, 333, 552, 557. 
 
 C 59 Ind. 323: 86 111. 376, 381, 386; 48 X. H. 
 316; 88 111.614; 16 111 567.
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 Galena etc. R. Co. v. Jacobs, 20 111. 478. 
 p. 552. 
 
 C51 111. 340; 58 111. 283, 306; 59 111. 536; 26 
 Ul. 385, 386; 46 111. 83; 49 111. 503; 19 111. 510; 
 52 111. 330; 64 111. 516; 72 111. 226, 388; 71 111. 
 509; 80 111. 257; 9 Wis. 220; 5 Kan. 179; 6 Or. 
 434 ; 37 111. 340, 341 ; 2 Bradw. 38. 
 Galena etc. R. Co. v. Loomis, 13 111. 548. 
 p. 323. 
 
 c 33 Ind. 363; 34 Iowa, 157; 67 111. 116; 63 
 m. 125; 16 111. 202; 35 Iowa, 194; 68 111. 318; 
 63 111. 120; 25 Mich. 291; 21 Ohio St. 593; 41 
 Iowa, 304; 27 Vt. 155; 63 111. 94; 25 111. 145; 18 
 111. 468. 
 
 Galena etc. R. Co. v. Yarwood, 15 111. 
 468; s. c. 17 111. 509. pp. 211, 252, 
 267, 357. 
 
 C 33 Iowa, 534; 3 CliflF. 422; 7 Ind. 478; 24 
 
 Ga. 366 ; 6 Cent. L. J. 47 ; 48 N. H. 315 ; 37 Mo. 
 
 547 ; 26 111. 386 ; 95 U. S. 443 ; 88 111. 614. 
 
 GaUin v. London etc. R. Co., 23 Week. 
 
 Rep. 308 ; s. c. 32 L. T. (n. S.) 550 ; 
 
 44 L. J. (Q. B.) 89; L. R. 10 Q. B. 
 
 212 ; 2 Cent. L. J. 217. pp. 400, 401, 
 
 402. 
 
 c 43 Conn. 340. 
 Garvey v. Camden etc. R. Co., 1 Hilt. 
 
 280. pp. 538, 539. 
 
 Gautret v. Edgerton, L. R. 2 C. P. 371 ; 
 
 s. c. 36 L. J. (C. P.) 191; 15 Week. 
 
 Rep. 638; 16L.T. (N. s.) 17. p. 226. 
 
 c 62 Mo. 561 ; 59 Mo. 36 ; 41 Ind. 250 ; 47 Ind. 
 
 48; 46 Md. 218; 55 How. Pr. 173; 41 N. Y. 533; 
 
 98 Mass. 578; 25 Mich. 9; 34 N. J. L. 472; 2 
 
 Cent. L. J. 540. 
 
 Gavett V. Manchester etc. R. Co., 16 
 Gray, 501. pp. 227, 252, 267. 
 c 14 Allen, 433; 8 Allen, 235; 7 Allen, 209, 
 3 Allen, 23 ; 65 N. Y. .560 ; 6 Cent. L. J. 47. 
 Gay V. Winter, 34 Cal. 153. p. 552. 
 Gaynor v. Old Colony etc. R. Co., 100 
 Mass. 208. pp. 270, 551, 562, 563. 
 c 30 Ohio St. 238, 243; 108 Mass. 12; 105 
 Mass. 79; 103 Mass. 514; .55 Ind. 50; 120 Mass. 
 265; 123 Mass. 515; 6 Cent. L. J. 1.38; 5 Re- 
 porter, 238; 104 Mass. 116, 141; 56 Ind. 520; 4 
 Cent. L. J. 84 ; 8 Cent. L. J. 444. 
 
 Gee V. Metropolitan R. Co., 21 Week. 
 
 Rep. 584; s. c. 42 L. J. (Q. B.) 105; 
 
 25 L. T. (N. 8.) 822; L. R. 8 Q. B 
 
 165; 28 L. T. (N. s.) 282. pp.210 
 
 229, 263. 
 
 c44 h. J. (Q. B.) 113, 114; L. R. 10 Q. B. 
 274, 275; 36 Upper Canada Q. B. 371. 
 
 Georgia etc. R. Co. v. McCurdy, 45 Ga. 
 
 288. pp. 227, 267, 577, 583. 
 Gerhard v. Bates, 2 El. & Bl. 476. p. 
 
 55. 
 Gibbon v. Paynton, 4 Burr. 2298. pp. 
 
 497, 498. 
 
 Gibbons v. Ogden, 9 Wheat. 1. p. 475. 
 
 Gibson v. Bradford, 4 El. & Bl. 568; 
 
 s. c. 1 Jur. (N. 8.) 520; 24 L. J. (Q. 
 
 B.) 159. p. 466. 
 
 Gibson v. Small, 4 H. L. Cas. 404. p. 
 
 143. 
 Giles V. Great Western R. Co., 36 Up- 
 per Canada Q. B. 360. pp. 270, 271. 
 Gilhooly v. New York etc. Steam Nav. 
 Co., 1 Daly, 197. pp. 472, 474, 533, 
 534, 536. 
 Gillan v. Simpkin, 4 Camp. 240. p. 
 467. 
 
 c 13 Pa. St. 37. 
 Gillenwater v. Madison etc. R. Co., 5 
 Ind. 339. p. 48. 
 
 c47 Iowa, 492; 30 111. 24; 44 Ind. 201; 58 
 N. Y. 134; 11 Wis. 250; 36 Mo. 434; 26 Barb. 
 645; 6 Am. L. Reg. 715; 22 Ind. 29; 5 Biss. 317. 
 Gillespie v. Newburgh, 54 N. Y. 468. 
 
 p. 553. 
 Gillis V. Pennsylvania R. Co., 59 Pa. 
 St; 129. pp. 50, 106, 226. 
 c 2 Cent. L. J. 450; 35 N. J. L. 25; 59 Mo. 
 36; 71 111.507,509; 47 Ind. 46; 65 Pa. St. 275; 
 21 Minn. 213, 214; 4 Ilun, 762; 67 111. 264; 6 
 Reporter, 345; 86 Pa. St. 79. 
 Gilshaunon v. Stony Brook R. Co., 10 
 Cush. 228. p. 47. 
 
 c 119 Mass. 431; 28 Ind. 377; 86 Pa. St. 440; 
 8 Kan. 517; 53 Ga. 16; 18 N. Y. 434; 53 Pa. St. 
 456; 43 Me. 270; 102 Mass. 583; 49 Barb. 326; 
 14 Minn. 364; 38 Pa. St. 110; 10 Allen, 237, 238; 
 11 Kan. 93; 62 Me. 466; 6 Reporter, 126; 59 
 Pa. St. 246, 251; 13 Ind. 369; 28 Ind. 377; 46 
 Texas, 538; 17 N. Y. 156; 76 111. 398; 18 Ind. 
 230; 35 N. Y. 565; 43 Me. 270; 10 Gray, 281; 36 
 Mo. 433. o 9 Heisk. 868. 
 Ginnon v. New York etc. R. Co., 3 
 
 Robt. 25. pp. 227, 228, 267. 
 Gisbourne v. Hurst, 1 Balk. 249. p. 
 
 493. 
 Glaholm v. Barker, L. R. 5 Eq. 598; 
 8. c. 12 Jur. (N. 8.) 764 ; 35 L. J. (Ch.) 
 657; 14 Week. Rep. 1006; 14 L. T. 
 (N. s.) 880; 11 Jur. (N. s.) 434; 34 
 L. J. (Ch.) 533; 13 Week. Rep. 671 ;
 
 XXX 
 
 TABLE OF CASES CITED. 
 
 12 L. T. (N. 8.) 317; 34 Beav. 305; 
 
 L. R. 1 Ch. 228. p. 544. 
 
 c 51 Pa. St. 322. 
 Glasco V. New York etc. R. Co., 36 
 
 Barb. 557. pp. 434, 520, 521, 522. 
 
 c 37 N. Y. Supr. Ct. 528, 532. 
 Glassey v. Hestonville etc. R. Co., 57 
 
 Pa. St. 172. p. 293. 
 Gleason v. Bremen, 50 Me. 222. p. 
 
 552. 
 Gleason v. Goodricli Transp. Co., 32 
 
 Wis. 85. pp. 510, 513, 517, 529, 
 
 c 33 Wis. 63. 
 Glover v. London etc. R. Co., L. R. 3 
 
 Q. B. 25. p. 516. 
 
 c 17 Upper Canada C. P. 615. 
 Goddard v. Grand Trunk R. Co., 57 
 
 Me. 202. pp. 304, 317, 3G2, 364, 365, 
 
 366, 369, 370, 575, 576, oSl. 
 
 C44 Iowa, 318; 53 Miss. 221; 3 So. Car. 
 597; 3 Cliflf. 428; 36 Wis. 464; 106 Mass. 189; 
 62 Me. 88, 90; 3 Jones & Sp. 130; 38 Ind. 127; 
 8 Busli, 152 ; 11 Nev. :iG3. ? 36 Wis. 676. 
 Goetz V. Hannibal etc. R. Co., 50 Mo. 
 
 472. pp. 339, 376. 
 Goff V. Great Northern R. Co., 30 L. 
 
 J. (Q. B.) 148; s. c. 3 El. & El. 672. 
 
 pp. 359, 373. 
 
 c 42 L. J. (Q. B.) 25, 26, 27 ; L. R. 8 Q. B. 
 38, 39, 40, 41; 3 Cliflf. 424; L. R. 2 Q. B. 536, 
 537; 46 N. Y. 29; Irish Kep. 5 C. L. 8, 10, 16, 
 17, 18, 19, 24, 25; 47 N. Y. 126; 12 Upper Can- 
 ada C. P. 93. «1 L. R. 2 Q. B. 538, 539. 
 Goines v. McCandless, 4 Phila. 255. 
 
 pp. 346, 377. 
 Goldey v. Pennsylvania R. Co., 6 Casey, 
 
 248; s. c. 30 Pa. St. 342. p. 386. 
 
 c 17 How. 368; 59 Pa. St. 250; 47 Ind. 486; 
 51 Pa. St. 330, 331; 39 Iowa, 254; 55 Pa. St. 59, 
 60, 62. 
 Gonzales «. New York etc. R. Co., 38 
 
 N. Y. 440; s. c. 39 How Pr. 408; 1 
 
 Jones & Sp. 57; 6 Robt. 93, 297; 1 
 
 Sweeny, 506 ; 50 How. Pr. 126. pp. 
 
 269, 272. 
 
 c66 Barb. 441; 14 Abb. Pr. (n. s.) 30, 76; 
 34 Iowa, 160; 54 N. Y. 471; 29 Iowa, 38; 7 
 Lans. 13; 42 X. Y. 473; 3 Lans. 85; 2 N. Y. S. 
 C. (T. & C.) 646. 
 Gordon v. Grand Street etc. R. Co., 40 
 
 Barb. 546. pp. 43, 107. 
 Gordon v. Manchester etc. R. Co., 52 
 
 N. H. 596. pp. 65, 68. 
 
 Gore V. Norwich etc. Transp. Co., 2 
 
 Daly, 254. p. 518. 
 
 c 32 Wis. 92. 
 Goshen v. Supervisors, 1 W. Va. 308. 
 
 p. 543. 
 Goslin V. Corry, 7 Man. & G. 347. p. 
 
 554. 
 Gould V. Hill, 2 Hill, 623. p. 381. 
 Govett V. Radnidge, 3 East, 62. p. 
 
 542. 
 Graffam v. Boston etc. R. Co., 67 Me. 
 
 234. p. 522. 
 Graham v. Davis, 4 Ohio St. 362. pp. 
 
 387, 393. 
 Graham v. Pacific R. Co., 66 Mo. 536. 
 
 pp. 45, 401, 574, 575, 577, 578. 
 Graham v. Toronto etc. R. Co., 23 Up- 
 per Canada C. P. 541. p. 49. 
 Grand Rapids etc. R. Co. v. Huntley> 
 
 38 Mich. 537. pp.208, 221. 
 Grand Rapids etc. R. Co. v. Judson, 34 
 
 Mich. 506. p. 208. 
 Grant v. Newton, 1 E. D. Smith, 95. 
 
 pp. 510, 511, 537. 
 
 c 30 N. Y. 617; 1 Hilt. 502; 4 E. D. Smith, 
 180, 182, 183; 2 Bosw. 602, 604. 
 Grant v. Norway, 10 C. B. 688; s. e. 2 
 
 Eng. Law & Eq. 337. p. 176. 
 Great Northern R. Co. v. Eastern Coun- 
 ties R. Co., 9 Hare, 306; s. c. 7 Eng. 
 
 Rail. Cas. 643 ; 21 L.J. (Ch.) 837; 12 
 
 Eng. Law & Eq. 224. p. 418. 
 Great Northern R. Co. •». Harrison, 10 
 
 Exch. 376; s. c. 2 Com. Law Rep. 
 
 1136; 23 L. J. (Exch.) 308; 12 C. B. 
 
 576. p. 44. 
 
 c ,34 N. J. L. .516 ; 34 Upper Canada Q. B. 
 458, 462. 
 
 Great Northern R. Co. v. Shepherd, 8 
 
 Exch. 30; s. c. 7 Eng. Rail. Cas. 310; 
 
 21 L. J. (Exch.) 286. pp. 611, 522, 
 
 523. 
 
 C 73 111. 353 ; 41 Mo. 507 ; L. R. 6 Q. B. 619, 
 621 ; 40 L. J. (Q. B.) 303, 304 ; 36 Upper Canada 
 Q. B. 355; 2 Bosw. 604; 6 Hun, 547; 10 C. B. 
 (N. S.) 170, 172, 178; 98 Mass. 378; 1 Dakota, 
 359. 
 G-reat Western B. Co. v. Blake, 7 Hurl. 
 
 & N. 987; s. c. S Jur. (n. s.) 1013; 31 
 
 L. J. (Exch.) 346; 10 Week. Rep. 
 
 388 ; 7 L. T. (N. s.) 94. pp. 412, 413,
 
 TABLE OF CASES CITED. 
 
 XXXJ 
 
 414, 415, 416, 417, 432. (In full, p. 
 
 403.) 
 
 c 12 Wall. 85; 35 Upper Canada Q. B. 550; 
 L. R. 3 Q. B. 553, 554 ; L. R. 6 Q. B. 272, 273, 
 274; 40 L,. J. (Q. B.) 94, 95; L. R. 5 O. P. 441, 
 442,443, 444; L. R. 8 Exch. 141, 143, 144, 145; 
 42 L. J. (Exch.) 92, 94, 95, 96; 56 Me. 240. 
 
 Great Western R. Co. v. Braid, 1 Moo. 
 
 P. C. C. (N. s.) 101 ; s. c. 9 Jur. (n. s.) 
 
 339; 1 Week. Rep. 444. pp. 82, 207, 
 
 211,219. , 
 Great Western R. Co. v. Goodman, 12 
 
 C. B. 313; s. c. 16 Jur. 862; 21 L. J. 
 
 (C. P.) 197; 11 Eng. Law & Eq. 546. 
 
 pp. 514, 530. 
 
 C 10 C. B. (N. S.) 469; 46 N. H. 226, 229. 
 
 Great Western R. Co. v. Miller, 19 Mich. 
 
 305. pp. 340, 368, 376, 377. 
 
 c 44 Iowa, 318. 
 Great Western B. Co. v. Pocock, 28 
 
 Week. Rep. 49; s. c. 10 Cent. L. J. 
 
 84. (In full, p. 63.) 
 
 c 9 Hun, 672. 
 Great Western R. Co. of Canada v. 
 
 Fawcett, 1 Moo. P. C. C. (n. s.) 101 ; 
 
 s. c. 9 Jur. (N. s.) 339; 11 Week. 
 
 Rep. 444; 8 L. T. (n. s.) 31. p. 82. 
 Green v. City of Bridgeton, 9 Cent. L. 
 
 J. 206. pp. 348, 377. 
 Green v. Milwaukee etc. R. Co., 38 
 
 Iowa, 100; s. c. 41 Iowa, 410. p. 
 
 514. 
 Greenland v. Chaplin, 5 Exch. 243. 
 
 pp. 266, 285, 286. 
 
 c 2 Sawyer, 29 ; 21 Upper Canada Q. B. 106 ; 
 18 Ohio St. 410, 411; 3 Q. B. Div. 336; 7 Cent. 
 L. J. 14; 17 Alb. L. J. 507; 59 III. 352; 53 Ind. 
 155; 14 Allen, 298; 101 Mass. 465; 75 111. 98; 
 38 Ala. 86 ; 62 Me. 243. ? 4 Am. L. Reg. (N. s.) 
 18 ; 46 Pa. St. 161. 
 Grieve v. Ontario etc. Steamboat Co., 
 
 4 Upper Canada C. P. 387. p. 473. 
 
 c 4 Upper Canada C. P. 543. 
 Griggsby v. Chappel, 6 Rich. L. 446. 
 
 p. 562. 
 
 c 53 Me. 502. 
 Grill V. General Iron Screw Collier Co., 
 
 L. R. 1 C. P. 600. pp. 398, 574. 
 Grote ■;;. Chester etc. R. Co., 2 Exch. 
 
 251 ; s. c. 5 Eng. Rail. Cas. 649. pp. 
 
 127,134, 135, 156, 159,221. 
 
 c L. R. 4 Q. B. 389, 393; 8 Best & S. .385, .386; 
 L. R. 2 Q. B. 424, 425 ; 36 L. J. (Q. B.) 187, 188; 
 
 Irish Rep. 13 C. L. 547; 15 Gratt. 237; L. R. 6 
 Q. B. 195, 505, 508, 512, 515. 
 
 Gunn V. Dickson, 10 Upper Canada Q. 
 B. 461. p. 545. 
 
 H. 
 
 Hackford v. New York etc. R. Co., 6 
 
 Lans. 381 ; s. c. 43 How. Pr. 222. p. 
 
 553. 
 Hadencamp v. Second Avenue R. Co., 
 
 1 Sweeny, 490. p. 444. 
 Hadley v. Cross, 34 Vt. 586. p. 215. 
 
 c 48 N. H. 315. 
 Hadsoll V. Stallebrass, 11 Ad. & E. 301. 
 
 p. 547. 
 Hagan v. Providence etc. R. Co., 3 R. 
 
 1.88. p. 575. 
 
 c 57 Me. 248. o 11 Nev. 362. 
 Hale V. New Jersey Steam Nav. Co., 15 
 
 Conn. 539. p. 386. 
 Haley v. Chicago etc. R. Co., 21 Iowa, 
 
 15. pp. 271, 302, 340, 376, 377. 
 
 c 38 Iowa, 296; 32 Iowa, 149; 29 Iowa, 58; 
 36 Iowa, 40. 
 Hall V. Connecticut River Steamboat 
 
 Co., 13 Conn. 319. pp. 205, 236, 237, 
 
 357, 558. 
 
 c 44 Miss. 498; 3 Cliff. 422; 4 Iowa, 550; 21 
 Conn. 254, 578; 48 N. H. 315; 11 Gratt. 711; 2 
 Story, 42. 
 Hall V. De Cuir, 95 U. S. 485. pp. 346, 
 
 348, 349, 475. 
 Hall V. Hollander, 4 Barn. & Cress. 660. 
 
 p. 547. 
 
 c 25 Me. 45; 15 Ga. 356; 2 Cush. 351; 117 
 Ma.ss. 544; 19 C. B. (N. S.) 236; 34 L. J. (C. 
 P.) 296. ? 21 Wend. 617. 
 Hall V. Power, 12 Mete. 482. p. 350. 
 
 c 31 Ark. 51 ; 59 Pa. St. 141 ; 15 N. Y. 463. 
 Halpin v. Third Avenue R. Co., 8 Jones 
 
 & Sp. 175. pp. 444, 562. 
 Hambleton v. Veere, 2 Saund. 169. p. 
 
 564. 
 Hamilton v. New York etc. R. Co., 51 
 
 N.Y. 100. pp. 70, 377. 
 
 c 47 Iowa, 86; 10 Ch. Leg. N. 78; 6 Re- 
 porter, 4; 48 Vt. 235. 
 Hamilton v. Third Avenue R. Co., 53 N. 
 
 Y. 25; s. c. 48 How. Pr. 50; 3 Jones 
 
 &Sp. 118. pp.338, 571,575, 579. 
 
 c 45 Iowa, 573; 4 Hun, 59, 219, 684; 1 Nev. 
 311 ; 67 N. Y. 56 ; 6 Thomp. & C. 498. d 48 Vt. 
 235.
 
 xxxu 
 
 TABLE OF CASES CITED. 
 
 Hamlin v. Great Northern R. Co., 1 
 
 Hurl. & N. 408; s. c. 2 Jur. (n. s.) 
 
 1122; 26 L. J. (Excli.) 20. pp. 546, 
 
 568. 
 
 Cl C. P. Div. 302, 313, 323, 325 ; 42 Wis. 29 ; 9 
 Ch. Leg. N. 316. d 44 L. J. (Q. B.) 51, 52, 53; 
 L. R. 10 Q. B. 116, 120. 
 Hammond v. North-Eastern R. Co., 6 
 
 So. Car. 130. pp. 45, 545. 
 Hando v. London etc. R. Co., Q. B., 
 
 May 6, 1867. p. 147. 
 Hanley v. Harlem R. Co., 1 Edm. Sel. 
 
 Cas. 359. pp. 26, 219. 
 Hanna (The), 36 L. J. (Adm.) 1; s. c. 
 
 15 Week. Rep. 263 ; L. R. 1 Adm. 283 ; 
 
 15 L. T. (N. S.) 334. p. 463. 
 Hannibal etc. R. Co. v. Swift, 12 Wall. 
 
 262 ; s. c. 11 Am. L. Reg. (x. s.) 126 ; 4 
 
 Ch. Leg. N. 99. pp. 28, 507, 513, 518, 
 
 520,521. 
 
 c 52 N. Y. 433 ; 67 N. Y. 212; 1 Dakota, 358. 
 Hanson v. European etc. R. Co., 62 
 
 Me. 84. pp. 366, 576, 581. 
 
 c 11 Nev. 364. 
 Harlow v. Fitchburg R. Co., 8 Gray, 
 
 237. pp. 536, 539. 
 Harlow v. Humiston, 6 Cow. 191. p. 
 
 551. 
 
 c 18 N. Y. 251; 33 Barb. 416; 23 Wend. 447, 
 452; 20 111. 490; 55 Barb. 246; 5 Duer, 25; 25 
 Me. 47 ; 12 Pick. 177 ; 24 N. J. L. 269, 284 ; 2 
 Hilt. 38; 6 Iowa, 452; 8 Nev. 114; 21 Barb. 79 
 40 Barb. 382; 29 Me. 309; 4 Barb. 338; 7 Bosw. 
 135. 
 Harper v. Erie R. Co., 32 N. J. L. 88 
 
 pp. 226, 268. 
 Harris v. Costar, 1 Car. & P. 636. pp 
 
 116, 120, 236, 238, 550. 
 
 C 21 Md. 296 ; 2 C. B. 891 ; 3 Dow. & L. 797 
 10 Jur. 437; 15 L. J. (C. P.) 185. 
 Harris v. Great Western R. Co., 1 Q 
 
 B. Div. 515. p. 519. 
 
 C 2 C. P. Div. 420, 421. 
 
 Harris v. Packwood, 3 Taun. 272. pp. 
 
 493, 497, 499. 
 Harris v. Stevens, 31 Vt. 79. pp. 106, 
 
 350, 377. 
 
 c 59 Pa. St. 141 ; 31 Ark. 51, .52. 
 Harrold v. Great Western R. Co., 14 
 
 L. T. (N. s.) 440. pp. 232, 268. 
 
 C L. R. 4 Exch. 124. 
 Hart V. Rensselaer R. Co., 8 N. Y. 37. 
 
 pp. 429, 432. 
 
 Hathaway v. Toledo etc. R. Co., 46 Ind. 
 
 25. p. 552. 
 
 c 52 Iml. Ill : 47 Ind. 456 ; 49 Ind. 97. 
 Havens v. Hartford etc. R. Co., 28 Conn. 
 
 69. p. 545. 
 Hawcroft v. Great Northern B. Co., 21 
 
 L. J. (Q. B.) 178; s. c. 16 Jur. 196; 
 
 8Eng.Law&Eq. 862. pp.29, 65, 69. 
 
 (In full, p. 53.) 
 
 c 27 Ind. 61. ? 52 N. H. 602. 
 Hawkins v. Great Western R. Co., 17 
 
 Mich. 57; s. c. 18 Mich. 427. p. 386. 
 Hawkins v. Hoffman, 6 Hill, 586. pp. 
 
 411, 511, 513, 521. 
 
 c 57 X. Y. 557; 15 Mich. 127; 30 N. Y. 615; 
 4 Bosw. 234 ; 35 Vt. 622 ; 3 Barb. 389 ; 9 Humph. 
 624; 15 Mich. 143; 49 N. Y. 78; 24 La. An. 573; 
 45 Barb. 223; 14 Allen, 459; 10 Cush. 418; 6 
 Hun, 547; 98 Mass. 84; 2 Bosw. 64; 44 N. H. 
 330,331; 14 Pa. St. 133; 6 Ind. 247; 10 How. 
 Pr. 332; 2 Duer, 341; 13 111. 748, 749, 750; 1 E. 
 D. Smith, 99; 6 Cush. 72; 37 N. Y. Superior 
 Ct. 5-28; 6 Hill, 590; 25 Ga. 64; 7 Am. L. Reg. 
 (N. S.) 538; 6 Blatchf. 69; 1 Hilt. 502. ? 30 N. 
 Y. 610. 
 Hay V. Great Western R. Co., 37 Upper 
 
 Canada Q. B. 456. p. 266. 
 Hay V. Le Neve, 2 Shaw's Sc. App. 405. 
 
 p. 285. 
 Haycroft v. Lake Shore etc. R. Co., 
 
 64 N. Y. 636. p. 662. 
 
 c 7 Hun, 556. 
 Hays V. Gallagher, 72 Pa. St. 136. p. 
 
 552. 
 Hazard v. Chicago etc. R. Co., 1 Biss. 
 
 503. pp. 228, 234, 267, 343. 
 
 c 59 Ind. 323. 
 Healey v. City Passenger R. Co., 28 
 
 Ohio St. 23. pp. 370, 375, 443. 
 Healy v. New York, 3 Hun, 708. p. 
 
 271. 
 ^ Heard v. Mountain, 5 Petersd. 54. p. 
 
 236. 
 Hegeman v. Western B. Corp., 16 Barb. 
 
 353; 13 N. Y. 9. pp. 191, 200, 209, 
 
 215, 216, 221, 222, 356, 563. (In full, 
 
 p. 160.) 
 
 c 44 N. Y. 481, 487 ; 3 Cliff. 421 ; 3 Park. Cr. 
 Cas. 237; 15 N. Y. 411 ; 34 Barb. 274; 11 Allen, 
 316; 25 N. Y. 445; 34 N. Y. 40S; 48 N. H. 314, 
 315 ; 24 N. Y. 219 ; 18 N. Y. 588 ; 47 N. Y. 287 ; 
 32 Barb. 659; 9 Rich. L. 89; 51 N. Y. 502; 63 
 Barb. 266. d 26 N. Y. 103.
 
 TABLE OF CASES CITED. 
 
 xxxm 
 
 Heim v. McCaughan, 32 Miss. 17. pp. 
 
 65, 66, 67, 544, 546, 551, 568, 574. 
 Hellinan v. Holladay, 1 Woolw. 365. 
 
 pp. 511, 512, 522, 523. 
 Henderson v. Stevenson, 32 L. T. (n. 
 
 S.) 709; s. c. L. R. 2 Sc. App. 470. 
 
 pp. 65, 437, 527. ^i^^^ 
 
 dl C. P. Div. 626; 2 0. P. Div. 421, 429; L. 
 R. 1 Q. B. 521, 522, 528, 530, 531, 532; 2 Q. B. 
 421,429. 
 
 Hendricks v. Sixth Avenue R. Co., 12 
 
 Jones & Sp. 8. pp. 303, 304. 
 Herman v. Drinkwater, 1 Me'. 27. p. 
 
 538. 
 
 c 11 Humph. 421 ; 1 Hilt. 282. 
 Hestonville etc. R. Co. v. Connell, 6 
 
 W. N. C. 514; s. c. 8 Cent. L. J. 306. 
 
 p. 442. 
 Hewett V. Swift, 3 Allen, 423. pp. 362, 
 
 370, 375. 
 Hey V. Philadelphia, 81 Pa. St. 44. p. 
 
 220. 
 Hibbard v. New York etc. R. Co., 15 
 
 N. Y. 455. pp. 30, 43, 335, 336, 340, 
 
 375. 
 
 C 7 Hun, 144 ; 28 Barb. 279, 283 ; 36 Con . 
 291; 95 U. S. 502; 28 Conn. 89; 46 N. H. 223; 
 57 Me. 235, 241 ; 31 N. J. L. 393; 37 Mich. 346; 
 47 N. Y. 126; 55 Ind. 372. d 46 N. Y. 29. 
 Hickey v. Boston etc. R. Co., 14 Allen, 
 
 429, pp. 252, 260, 262, 551. 
 
 cl6 Am L. Keg. 666; 121 Mass. 428; 6 
 Cent. L. J. 47; 49 N. Y. 53; 95 U. S. 443. d 
 104 Mass. 141. 
 Hicks V. Pacific R. Co., 65 Mo. 34. p. 
 
 552. 
 
 C 65 Mo. 23, 24, 26 ; 6 Cent. L. J. 230. 
 Hickox V. Naugatuck R. Co., 31 Conn. 
 
 281. pp. 511, 514. 
 
 c 9 Hun, 672 ; 1 Dakota, 360. 
 Hide V. Propi'ietors, etc., 1 Esp. 36. 
 
 pp. 494, 495. 
 Higgins V. Hannibal etc. R. Co., 36 
 
 Mo. 418. pp. 49, 263. 
 
 c 42 Mo. 85 ; 8 Kan. 517. 
 Higgins V. Harlem etc. R. Co., 2 Bosw. 
 
 132. p. 261 . 
 Higgins V. Watervliet Turnpike Co., 
 
 46 N. Y. 23. pp. 301, 317, 367, 374, 
 
 375, 44'^.. 
 
 c 70 N. Y. .Wl ; 36 Wis. 4f;4; 62 N. Y. 185; 5 
 Daly, 223, 224; 64 N. T. 133; 56 N. Y. 199; 3 
 
 Jones & Sp. 128; 53 N. Y. 28; 47 N. Y. 125, 
 
 277 ; 49 N. Y. 314. 
 
 Highland Light (The), Chase's Dec. 
 
 151. p. 480, 482. 
 Hill V. New Haven, 37 Vt. 501. p. 553. 
 Hill V. New Orleans etc. R. Co., 11 La. 
 
 An. 292. pp. 267, 559, 575, 
 
 c 57 Me. 253; 23 La. An. 464. 
 
 Hill V. Syracuse etc. R. Co., 63 N. Y. 
 
 101. pp. 70, 71, 376. 
 
 e 7 Hun, 144. 
 Hilliard v. Goold, 34 N. H. 240. pp. 
 
 329, 341, 376. 
 
 c46 N. H. 223; 33 Iowa, 567; 53 Me. 283; 
 15 N. Y. Sup. Ct. 580; 58 Me. 192; 43 111. 423; 7 
 Iowa, 209. 
 Hinckley v. Cape Cod R. Co., 120 Mass. 
 
 257. p. 551. 
 Hiuton V. Dibbin, 2 Q. B. 646. pp. 
 
 178, 389, 398. 
 Hirschsohn v. Hamburgh etc. Packet 
 
 Co., 2 Jones &Sp. 521. pp. 472, 511, 
 
 512, 521. 
 Hobbs V. London etc. R. Co., 23 Week. 
 
 Rep. 520; s. c. 44 L. J. (Q. B.) 49; 
 
 L. R. 10 Q. B. Ill; 32 L. T. (n. s.) 
 
 352. pp. 65, 67, 565, 566, 571. 
 
 c I.e. P. Div. 303; 42 Wis. 29; 9 Ch. Leg. N. 
 316; 4 Col. 348. 
 Hoffbauer v. D. & N, R. Co., 20 Alb. L. 
 
 J. 474. p. 340. 
 Holbrook v. Utica etc. R. Co., 16 Barb. 
 
 113; s. c. 12 N. Y. 534. pp. 166, 193, 
 
 196,211,212,214,257, 553. 
 
 c 3 Park Cr. Cas. 237 ; 6 Gray, 70; 34 Barb. 
 269 ; 5 Bush, 7 ; 44 Ind. 204 ; 37 Mo. 260 ; 7 Bosw. 
 135; 18 N. Y. 252, 540, 544; 32 Barb. 659; 3 E. 
 D. Smith, 333; 35 Barb. 199; 29 Ind. 86; 16 
 Barb. 356. ? 39 JMd. 345. 
 Holder v. Soulby, 8 C. B. (n. s.) 254; 
 
 s. c. 29 L. J. (C. P.) 246; 6 Jur. (N. 
 
 s.) 1031; 8 Week. Rep. 438. p. 531. 
 Holdridge v. Utica etc. R. Co., 56 Barb. 
 
 191. p. 534. 
 Holley V. Winooski Turnpike Co., 1 Aik. 
 
 74. p. 220. 
 Hollister v. Nowlen, 19 Wend. 234. pp. 
 
 4, 5, 26, 114, 122, 236, 526. (In full, 
 
 p. 489.) 
 
 c 15 Mich. 137, 140; 30 N. Y. 615 ; 1 Daly, 153, 
 199; 4 Bosw. 233; 10 N. H. 486, 488; 11 Cush. 
 99 ; 25 N. Y. 461 ; .34 N. Y. .551 ; 21 Wend, .".ei ; 29 
 Wend. 49; 19 Wend. 264, 257; 49 Barb. 155; 11
 
 XXXIV 
 
 TABLE OF CASES CITED. 
 
 N. T. 490 ; 14 Barb. 526 ; 46 N. H. 228 ; 16 Barb. 
 116; 98 Mass. 378; 1 E. D. Smith, 99; 9 Mete. 
 !•? : 51 Barb. 78 ; S Hill, 20 ; 7 Hill, 563 ; 2 Daly, 
 121 ; 10 Ch. Leg. N. 9, 10 ; 16 Pa. St. 78 ; 45 Barb. 
 219; 1 Abb. Adm. 359; 66 111. 477; 29 Ga. 539; 
 23 Vt. 205; 16 Vt. 61; 23 N. H. 285; 4 Sandf. 
 S. C. 140, 144; 2 Ohio St. 136. 
 Holly V. Atlanta Street R. Co., 7 Re- 
 porter, 460. pp. 304, 3G4, 442. 
 Holly V. Boston Gas Co., 8 Gray, 123. 
 
 p. 292. 
 Holmes v. Doane, 3 Gray, 328. p. 464. 
 Holmes v. North-Eastern R. Co., L. R. 
 
 4 Exch. 254; s. c. 38 L. J. (Exch.) 
 
 161 ; 17 Week. Rep. 800 ; 20 L. T. (x. 
 
 s.) 616 (affirmed in the Exchequer 
 
 Chamber, L. R. 6 Exch. 123; 40 L. 
 
 J. (Exch.) 121). pp. 106, 226. 
 
 c 62 Me. 562; 35 N. J. L. 25; 59 Mo. 36; 47 
 Ind. 48; 25 Mich. 9; 1 Q. B. Div. 253, 254, 2.55; 
 L. R. 10 Q. B. 301 ; 6 Keiiorter, 752. 
 Holmes v. Waketield, 12 Allen, 580. pp. 
 
 370, 374, 375. 
 
 c 64 N. Y. 138; 104 Mass. 120, 121; 38 Ind. 
 126; 5 N. T. S. C. (T. & C.) 480; 3 Hun, 334; 7 
 Reporter, 753. 
 Holyoke v. Grand Trunk R. Co., 48 N. 
 
 H. 541. pp. 551, 561, 564. 
 
 c 11 Nev. 369. 
 Hood V. New York etc. R. Co., 22 Conn. 
 
 1. pp.433, 434. 
 
 c .56 Me. 240; 22 N. Y. 304; 3 Daly, 396; 29 
 Vt. 426; 23 Conn. 474, 475,485; 31 Cal. 52; 29 
 Barb. 54; 24 N. Y. 277; 33 Conn. 179; 45 Mo. 
 241. ? 22 N. Y. 278 ; 24 111. 338, 339 ; 47 Mo. 590. 
 Hopkins v. Atlantic etc. R. Co., 36 N. 
 
 H. 1. pp. 564, 565, 572, 573, 574. 
 
 C 57 Me. 255, 257 ; 11 Nev. 364; 48 N. H. 318, 
 320,455; 19 Ohio St. 172. 
 Hopkins v. Westcott, 6 Blatchf. 54; 
 
 s. c. 7 Am. L. Reg. (x. s.) 533. pp. 
 
 513, 528. 
 
 r 32 Wis. 99; 4 Cent. L. J. 38; 93 TJ. S. 188; 
 15 Alb. L. J. 192. d 43 N. Y. 208. 
 Houfe V. Fulton, 29 Wis. 296. p. 294. 
 Houston etc. R. Co. v. Gorbett, 49 
 
 Texas, 473. pp. 208, 227, 241. 
 Houston etc. R. Co. v. Moore, 49 
 
 Texas, 31. pp. 52, 343, 345. 
 Howard v. Cobb, 19 Law Reporter, 
 
 611. pp. 65, 66. 
 Howe V. Newmarch, 12 Allen, 55. p. 
 363. 
 c50 Mo. 121; 114 Mass. 519; 5 N. Y. S. C. 
 
 (T. & C.) 483 ; 3 Hun, 337 ; 53 Ind. 339 ; 57 Me. 
 214; 104 Mass. 120; 38 Ind. 126; 3 CUff. 429; 
 106 Mass. 188. 
 
 Howe V. Plainfleld, 41 N. H. 135. p. 
 
 557. 
 Hoyt V. Hudson, 41 Wis. 105. p. 552. 
 
 c 43 Wis. 524, 675 ; 6 Cent. L. J. 429 ; 41 Wis. 
 148; 7 Reporter, 83, 84. 
 Howland v. The Lavinia, 1 Pet. Adm. 
 
 123. p. 467. 
 Hubener v. New Orleans etc. R. Co., 23 
 
 La. An. 492. pp. 226, 267. 
 Hudston.v. Midland R. Co., L. R. 4 Q. 
 
 B. 366; s. c. 10 Best & S. 504. p. 
 
 512. 
 
 c L. R. 6 Q. B. 621, 623; 40 L. J. (Q. B.) 304; 
 6 Hun, 547. 
 Huelsenkamp v. Citizens' R. Co., 34 
 
 Mo. 54; s. c. 37 Mo. 537. pp. 245, 
 
 444. 
 
 c 40 Mo. 518 ; 20 Minn. 135. ? 52 Me. 529. 
 Hulbert v. New York etc. R. Co., 40 
 
 N. Y. 145. pp. 51, 107, 108, 269, 
 
 c 10 Jones & Sp. 161 ; 28 Mich. 454. 
 Hull V. BLansas City, 54 Mo. 598. p. 
 
 220. 
 Hull V. Richmond, 2 Woodb. & M. 337. 
 
 p. 553. 
 Hunt V. Pownal, 3 Vt. 411. p. 220. 
 Hunt V. Wynn, 6 Watts, 47. p. 542. 
 Hunter v. Stewart, 47 Me. 419. p. 651. 
 Huntsraau v. Great Western R. Co., 20 
 
 Upper Canada Q. B. 24. p. 579. 
 
 c 20 Upper Canada Q. P.. 30. 
 Hurst V. Great Western R. Co., 19 C. 
 
 B. (N. s.) 310; s. c. 34 L. J. (C. P.) 
 
 264; 11 Jur. (N. s.) 730; 13 Week. 
 
 Rep. 950; 12 L. T. (n. s.) 634. pp. 
 
 29, 67. 
 
 c 24 Upper Canada Q. B. 519; 52 N. H. 605. 
 Hurt V. Southern R. Co., 40 Miss. 391. 
 
 p. 43. 
 Hutchings v. Western etc. R. Co., 2& 
 
 Ga. 61. pp. 510, 511, 521, 524. 
 Hutchinson v. York etc. R. Co., 5 Exch 
 
 343; s. c. 14 Jur. 837; 6 Eng. Rail 
 
 Cas. 580; 19 L. J. (Exch.) 296. p 
 
 48. 
 
 c 6 Cush. 77; 4 Jur. (v. s.) 767, 769, 771, 773: 
 2 Lans. 512; 7 La. An. .324, .327; 18 C. B. 803 
 L. R. 1 C. P. 296; 43 Me. 270; 3 Ohio St. 211 
 24 Ala. 36 ; 5 N. Y. 496 ; 53 N. Y. 5.52 ; 14 Minn 
 362 ; 23 Pa. St. 386 ; 22 Ala. 309, 312 ; 43 Me. 270 ;
 
 TABLE OF CASES CITED. 
 
 XXXV 
 
 11 Exch. 838; 5 Hun, 33; 6 Cal. 210; 6 La. An. 
 498; 21 111. 26; 9 Cush. 114; 51 Miss. 642; 10 
 Mich. 199; 76 111. 397; 26 N. Y. 565; 4 Jur. (N. 
 8.) 773; 10 Mich. 199; 1 Am. L. Keg. 719, 720; 5 
 Best & S. 57 ; 33 L. J. (Q. B.) 262, 264, 265, 266 ; 
 10 Jur. (N. S.) 1076, 1077; 3 Exch. Div 343; 5 
 Exch. 357, 358 ; 14 Jur. 841 ; 19 L. J. (Exch.) 
 302; 109 Mass. 449; 49 Miss. 283, 287; 28 Vt. 
 63; 17 Ohio St. 210; 6 Jones L. 246; 46 Texas, 
 638; 15 Ga. 358; 1 Hurl. & N. 250; 2 Jur. (N. 
 S.) 956; 25 L. J. (Exch ) 193. 
 Hutton V. Osborn, 1 Selw. N. P. (10th 
 
 ed.) 399, note b; p. 452. 
 Hyde v. Jamaica, 27 Vt. 443. p. 553. 
 
 c 21 Mich. 113; 36 Vt. 587; 29 Conn. 209; 36 
 N. H. 298; 122 Mass. 351 ; 29 Iowa, 90; 42 Ind. 
 343; 80 Vt. 740; 34 Conn. 13; 8 Minn. 166. 
 Hynds v. Hays, 25 Ind. 31. p. 558. 
 
 I. 
 
 Hlinois etc. R. Co. v. Able, 59 El. 131 ; 
 
 s.c. 4 Ch. Leg. N. 176. pp. 227, 267. 
 
 c 30 Ohio St. 240. 
 Hlinois etc. R. Co. v. Adams, 42 lU. 
 
 474. p. 386. 
 Hlinois etc. R. Co. v. Copeland, 24 111. 
 
 332. pp. 421, 432, 511, 536, 537, 549, 
 
 583. 
 
 c 1 McArthur, 494; 21 Wis. 587; 42 HI. 95; 
 84 111. 241. 7 51 Miss. 226. 
 
 Illinois etc. R. Co. v. Cunningham, 67 
 
 HI. 316. p. 580. 
 Illinois etc. R. Co. v. Demars, 44 HI. 
 
 292. p. 570. 
 Hlinois etc. R. Co. v. Finnegan, 21 HI. 
 
 646. p. 418. 
 
 c41 Wis. 73; 65 m. 369. 
 
 Illinois etc. R. Co. v. Godfrey, 71 HI. 
 
 500. pp. 105, 106. 
 
 c 72 111. 570; 83 111. 514, 515; 81 111. 596; 71 
 111. 642 ; 2 Bradw. 313. 
 Illinois etc. R. Co. v. Hammer, 72 111. 
 
 347. p. 105. 
 
 c 2 Bradw. 310. 
 Illinois etc. R. Co. v. Hetherington, 83 
 
 111. 510. p. 233. 
 
 c 2 Bradw. 40, 310, 433. 
 Hlinois etc. R. Co. v. Johnson, 67 111. 
 
 312. pp. 343, 580. 
 
 o 83 111. 280; 67111.316. 
 Illinois etc. R. Co. v. Kanouse, 39 111. 
 
 272. p. 417. 
 
 c 10 Jones & Sp. 234 ; 63 N. Y. 531 ; 40 111. 
 145; 63 111. 546; 86 111. 445; 20 Kan. 518. 
 
 Illinois etc. R. Co. v. Nelson, 59 111. 
 
 110. pp. 343, 570. 
 C 83 111. 280. 
 
 Illinois etc. R. Co. v. Phillips, 49 111. 
 
 234. p. 222. 
 Illinois etc. R. Co. v. Read, 37 HI. 484. 
 
 p. 402. 
 
 C 83 HI. 280; 34 N. J. L. 516; 85 111. 84; 2 
 Cent. L. J. 367 ; 20 Minn. 129, 130. 
 Illinois etc. R..Co. v. Slatton, 54 HI. 
 
 133. p. 267. 
 
 c 78 111. 94; 3 Cent. L. J. 416. 
 Illinois etc. R. Co. v. Sutton, 42 HI. 
 
 438. pp. 342, 343, 557. 
 
 c 59 Ind. 323 ; 63 111. 307 ; 67 111. 315 ; 38 Ind. 
 125. d 64 Mo. 475. 
 
 Hlinois etc. R. Co. v. Taylor, 24 HI. 
 323. p. 538. 
 C 24 lU. 336. 
 
 Illinois etc. R. Co. v. Whittemore, 43 
 
 111. 420. pp. 336, 375. 
 C 55 lU. 188. 
 
 Imhoff V. Chicago etc. R. Co., 20 Wis. 
 
 344. pp. 226, 446. 
 Ince V. East Boston Co., 106 Mass. 
 
 149. p. 251. 
 
 c 41 Iowa, 231 ; 95 U. S. 442 ; 6 Cent. L. J. 46. 
 Indiana etc. R. Co. v. Hudelson, 13 Ind. 
 
 325. p. 105. 
 
 c 17 Ind. 105; 15 Ind. 122. 
 Indiana etc. R. Co. v. Mundy, 21 Ind. 
 
 48. pp. 399, 402. 
 
 c 47 Ind. 492; 34 N. J. L. 516; 22 Ind. 28, 29; 
 20 Minn. 129 ; 2 Cent. L. J. 367. o 47 Ind. 
 482. 
 Indianapolis etc. R. Co. v. Allen, 31 Ind. 
 
 394. p. 389. 
 Indianapolis etc. R. Co. v. Anthony, 43 
 
 Ind. 183. pp. 369, 370, 549, 562. 
 
 c 61 Ind. 248, 251; 36 Wis. 675 
 Indianapolis etc. R. Co. v. Beaver, 41 
 
 Ind. 493. pp. 45, 234, 399. 
 
 c 47 Ind. 493, 495 ; 59 Ind. 322, 323. 
 
 Indianapolis etc. R. Co. v. Birney, 71 
 
 111. 391. pp. 65, 565, 570. 
 Indianapolis etc. R. Co. v. Hamilton, 44 
 
 Ind. 76. p. 549. 
 
 c 47 Ind. .371; 51 Ind. 248. 
 Indianapolis etc. R. Co. v. Horst, 93 
 
 U. S. 291; s. c. 15 Alb. L. J. 61; 16 
 
 Am. L. Reg. (n. s.) 317. pp. 104, 
 
 234, 266. 
 Indianapolis etc. R. Co. v. Keoly's
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 Administrator, 23 Ind. 133. pp. 549, 
 
 552. 
 
 c34 Iowa, 161; 24 Ind. 412; 35 Ind. 466; 42 
 Ind. 342; 29 Gratt. 479; 50 Ind. 68, 84; 26 Ind. 
 444; 38 N. J. L 139; 47 Ind. 478, 479. 
 Indianapolis etc. R. Co. v. Milligan, 50 
 
 Ind. 392. pp. 375, 551, 577, 585. 
 Indianapolis etc. R. Co. v. Rinard, 46 
 
 Ind. 203. pp. 28, 341, 343, 376. 
 
 c 51 Ind. 574. 
 Indianapolis etc. R. Co. v. Rutherford, 
 
 29 Ind. 82. p. 257. 
 
 c 5 Bush, 7 ; 39 Md. 350. 
 Ingalls v. Bills, 9 Mete. 1. pp. 131, 
 
 139, 147, 158, 167, 170, 174, 191, 199, 
 
 266, 355, 410. (In full, p. 112.) 
 
 c 24 Ga. 366 ; 8 Best & S. 380, 393, 403 ; 36 L. J. 
 (Q. B.) 185, 191, 195 ; L. R. 2 Q. B. 419, 430, 435, 
 439; 15 Mich. 140; 38 Miss. 275; 3 Cliff. 420; 21 
 Md. 283, 301; 119 Mass. 413: 15 N. Y. 411; 44 
 Ind. 201; 4 Iowa, 548; 97 Mass. .368; 2 Mont. 
 522, 526; 18 N. Y. .'i3S; 1 Duer, 241; 19 111. 517; 
 41 N. H. 51 ; 32 Barb. 659 ; 19 Wend. 269 ; 48 X. 
 H. 315; .34 Vt. 588; 13 N. Y^ 30; 15 lU. 471; 16 
 Barb. 116, 357; 11 Allen, 505; 37 Mo. 546; 11 
 Gratt. 715, 716. «l 13 N. Y. 25; 3 E. D. Smith, 
 334. ? 15 111. 468. 
 
 Insurance Co. v. Folsora, 18 Wall. 249. 
 
 p. 509. 
 Ionic (The), 5 Blatchf. 538. pp. 511, 
 
 512. 
 Irwin V. Sprigg, 6 Gill, 200. p. 552. 
 
 c 30 Ala. 327. 
 Isaacs V. Third Avenue R. Co., 47 N. 
 
 Y. 122. pp. 336, 443. 
 
 c 5 Daly, 222 ; 44 Iowa, 318. d 6 Daly, 224 ; 
 62 N. Y'. 184, 185. 
 
 Isabel V. Hannibal etc. R. Co., 60 Mo. 
 
 475. p. 293. 
 Israel v. Clark, 4 Esp. 359 ; s. c. 1 Stark. 
 
 423. pp. 115, 117, 118, 130, 145, 155, 
 
 199, 236, 237, 242. 
 
 c 48 N. H. 313 ; 8 Best & S. 379, 390, 400 ; L. 
 R. 2Q. B. 419, 437; 36 L. J. (Q. B.) 185, 190, 
 194. d 9 Mete. 7, 8. ? L. R. 4 Q. B. 388. 
 
 J. 
 
 Jackson v. Indianapolis etc. R. Co., 47 
 
 Ind. 454. p. 552. 
 
 C. 58 Ind. 28. 
 Jackson v. Second Avenue R. Co., 47 
 
 N. Y. 274. pp. 374, 563, 576. 
 
 C 70 N. Y. 591 ; 13 Hun, 74; 62 N. Y'. 185 ; 64 
 X.Y. 138; 5 Daly, 223. 
 
 Jackson v. Tollett, 2 Stark. 37. pp. 
 
 114, 200, 237, 240. 
 
 c 11 Gratt. 711. 
 Jacob V. United States, 1 Brocken. 520. 
 
 p. 482. 
 Jacobus V. St. Paul etc. R. Co., 20 
 
 Minn. 125; s. c. 1 Cent. L. J. 371. 
 
 pp. 44, 262, 399, 400. 
 
 c 37 Mich. 115 ; 2 Cent. L. J. 367. 
 James D. Parker (The), 23 Int. Rev. 
 
 Rec. 66. p. 482. 
 James v. Patten, 6 N. Y. 9. p. 486. 
 Jefferson Ins. Co. v. Cotheal, 7 Wend. 
 
 78. p. 559. 
 Jeffersonville etc. R. Co. v. Hendricks, 
 
 Admr., 26 Ind. 228. pp. 199, 227, 
 
 228, 267, 547, 552, 553. 
 
 C44 Miss. 487; 51 Ind. 44; 47 Ind. 497; 44 
 Ind. 201. 
 Jeffersonville etc. R. Co. v. Parmalee, 
 
 51 Ind. 42. p. 227. 
 Jeffersonville etc. R. Co. v. Riley, 39 
 
 Ind. 569. pp. 51, 110. 
 Jeffersonville etc. R. Co. v. Rogers, 38 
 
 Ind. 116. pp. 341, 342, 369, 549, 576. 
 
 c 45 Iowa, 572 ; 51 Ind. 248 ; 36 Wis. 675 ; 15 
 Minn. 56; 57 Me. 254; 46 Ind. 295. d 51 Ind. 
 572. ? 36 Wis. 676. 
 
 Jeffersonville etc. R. Co. v. Swift, 26 
 
 Ind. 459. p. 267. 
 Jeffersonville etc. R. Co. v. Vancant, 40 
 
 Ind. 233. p. 547. 
 Jencks v. Coleman, 2 Sumn. 221. pjj. 
 
 4, 7, 19, 26, 29, 314, 317, 351, 377, 453, 
 
 464,465. (InfuU, p. 11.) 
 
 c 15 Mich. 131; 4 Wall. 615; 67 X. Y'.303; 5 
 Ch. Leg. N. 535 ; 36 Wis. 459, 460, 463 ; 10 N. H. 
 4S6 ; 29 Vt. 163 ; 31 How. Pr. 277 ; 7 Mete. 601 ; 
 1 Am. Rail. Cas. 394; 24 N. J. L. 442; H 
 Blatchf. 235; 18 Int. Rev. Rec. 55; 15 111. 472; 
 95 U. S. 503. 
 
 Jenkins v. Little Miami R. Co., 2 Dis- 
 ney, 49. p. 563. 
 
 c 41 Ind. 254. 
 Jennings v. Great Northern R. Co., 35 
 
 L. J. (Q. B.) 15; s. c. 12 Jur. (n. s.) 
 
 331; L. R. 1 Q. B. 7; 44 Week. Rep. 
 
 28; 13 L. T. (x.s.) 231. p. 339. 
 
 c L. R. 1 Q. B. 15 ; 76 Pa. St. 74. 
 Jerome v. Smith, 48 Vt. 230. pp. 338, 
 
 339, 376, 556.
 
 TABLE OF CASES CITED, 
 
 XXXV 1 1 
 
 John V. Bacon, L. R. 5 C. P. 441. pp. 
 
 412, 413, 472, 473. 
 
 c L. R. 8 Exch. 147; 42 L. J. (Exch.) 97; 25 
 Mich. 9. 
 Johnson v. Concord R. Co., 46 N. H. 
 
 213. pp. 65, 70, 71, 377. 
 
 c 67 Me. 165 ; 17 Alb. L. J. 367 ; 6 Cent. L. J. 
 382 ; 50 Ind. 144 ; 2 Cent. L. J. 830 ; 6 Reporter, 
 490; 71 Pa. St. 436, 437; 55 Iiid. 372. 
 Johnson v. Hudson River R. Co., 20 N. 
 
 Y. 65; s. c. 6 Duer, 633; 5 Duer, 21. 
 
 pp. 551, 553. 
 Johnson v. Midland R. Co., 4 Exch. 
 
 367. p. 55. 
 Johnson v. Stone, 11 Humph. 419. p. 
 
 511. 
 
 c 15 Mich. 127; 30 N. Y. 612; 41 Miss. 678; 
 10 How. Pr. 333; 1 Hilt. 282. 
 Johnson v. Wells, 6 Nev. 222. pp. 571, 
 
 572. 
 
 c 44 Iowa, 323 ; 11 Nev. 369, 370, 375, 376. 
 Jolinson V. West Chester etc. R. Co., 70 
 
 Pa. St. 357. pp. 226, 268, 434, 
 
 c 50 Ohio St. 240. 
 Joliet V . Verley, 35 111 . 58 . p . 220 . 
 Jones V. Boyce, 1 Stark. 493. pp. 124, 
 
 236, 237, 261, 266. (In full, p. 246.) 
 
 c L. R. 4 C. P. 743; 44 L. J. (Q. B.) 114; 
 L. R. 10 Q. B. 274; 13 Pet. 193; 15 111. 471; 9 
 Mete. 13; 14 Alien, 486. 
 Jones V. Bright, 5 Bing. 533. p. 130. 
 Jones V. Norwich etc. Transp. Co., 50 
 
 Barb. 193. pp. 534, 535, 536. 
 Jones V. Voorhees, 10 Ohio, 145; s. c. 
 
 lOAm.L. Reg. 145. pp. 387, 512, 526. 
 
 <• 30 N. T. 612; 17 How. 369; 47 Ind. 486; 8 
 Bush, 475 ; 10 How. Pr. 332 ; 10 Ohio St. 70 ; 13 
 111. 750; 6 Cush. 72; 39 Iowa, 249; 2 Ohio St. 
 135. 
 
 Jones V. Yeager, 2 Dill. 64. p. 222. 
 Jordan v. Pall River R. Co., 5 Cush. 
 
 pp. 511, 512, 526. 
 
 c 15 Mich. 127; 30 N. Y. 612, 617, 621 ; 73 111. 
 .3.57; 41 Miss. 678; 35 Vt. 612; 55 Me. 5.32; 98 
 Mass. 84; 44 N. H. 331; 6 Ind. 247; 106 Mass. 
 148; 10 How. Pr. 333; 10 Cush. 507; 9 Hun, 
 671; 31 Conn. 283; 22 Iowa, 171; 29 Ind. 301; 
 40 N. H. 226 ; 98 Mass. 376 ; 27 Vt. 113. 
 Julien V. Str. Wade Hampton, 27 La. 
 An. 377. p. 472. 
 
 K. 
 
 Kansas etc. R. Co. v. Kessler, 18 Kan. 
 523. pp. 343, 344, 575, 
 
 Kansas etc. R. Co. v. Miller, 2 Col. 442. 
 
 pp. 208, 214, 560, 561. 
 Kansas etc. R. Co. v. Pointer, 14 Kan. 
 
 37; s. c. 9 Kan. 620. p, 552. 
 
 c 19 Kan. 493, 495. 
 Kansas Pacific R. Co. v. Montelle, 10 
 
 Kan. 119. pp. 435, 514. 
 Kansas Pacific R. Co. v. Salmon, 11 
 
 Kan. 83. p. 49. 
 
 c 19 Kan. 272, 493 ; 6 Reporter, 200. 
 Kay V. Pennsylvania R. Co., 63 Pa. St. 
 
 269. p. 293. 
 Kearney v. King, 2 Barn. & Aid. 301. 
 
 p. 457. 
 Keating v. New York etc. R. Co., 3 
 
 Lans. 469; s. c. 49 N. Y. 673. p, 
 
 226. 
 
 c 28 Mich. 454. 
 Keegan v. Western R. Corp., 8 N. Y, 
 
 175. p. 222. 
 Keeley v. Boston etc. R. Co., 67 Me. 
 
 163; s. c. 17 Alb. L. J. 366; 6 Cent. 
 
 L. J. 382. pp. 71, 359, 376. 
 Keene v. Lizardi, 5 La. 431. pp. 361, 
 
 362, 470. 
 
 c 27 La. Au. 5, 12; 3 Cliff. 427, 428. 
 Keene v. The Whistler, 2 Sawyer, 348. 
 
 p. 485. 
 Keith V. Piulvham, 43 Me. 501. pp. 
 
 199, 241, 259, 265. 
 
 c 49 Me. 281 ; 20 Minn. 135. 
 
 Keller v. New York etc. R. Co., 24 How. 
 
 Pr. 274. pp. 226, 234, 270. 
 Kelsey v. Glover, 15 Vt. 708. p. 220. 
 Kemp V. Coughtry, 11 Johns. 107, p. 
 
 492. 
 Kennard v. Burton, 25 Me. 39. pp. 
 
 546, 552. 
 
 c 13 111. 588 ; 19 Conn. 576 ; 18 N. Y. 252 ; 28 
 Mich. 45; 40 Me. 65; 3 Woodb. & M. 345; 32 
 Me. 52; 12 Mete. 420; 30 Me. 179; 29 Me. 310. 
 Kennedy v. North Missouri R. Co., 36 
 
 Mo. 351. p. 245. 
 Kennedy v. Shea, 110 Mass. 147. p. 
 
 547. 
 Kenrig v. Eggleston, Aleyn, 93. pp. 
 
 497, 499. 
 Kent V. Midland R. Co., L. R. 10 Q. B. 
 
 1; s. C.31L.T. (N. s.) 430; 23 Week. 
 
 Rep. 25 ; 44 L. J. (Q. B.) 18. pp. 432, 
 
 437, 532, 534,
 
 XXXVlll 
 
 TABLE OF CASES CITED. 
 
 Kentucky etc. R. Co. v. Dills, 4 Bush, 
 593. pp. 267, 575. 
 C 59 Ind. 320. 
 
 Keokuk Packet Co. v. Henry, 50 El. 
 
 264. pp. 43, 50. 
 Keokuk Packet Co. v. True, 88 111. 608. 
 
 pp. 51, 472, 474. 
 Kepperly v. Ramsden, 83 111. 354. p. 
 
 552. 
 Ker V. Mountain, 1 Esp. 27. pp. 68, 
 
 237. 
 Kerr v. Grand Trunk R. Co., 24 Upper 
 
 Canada C. P. 209. p. 515. 
 Kessler v. New York etc. R. Co., 1 Abb. 
 
 N. C. 549 ; s. c. 61 N. Y. 538 ; 7 Lans. 
 
 62. pp. 434, 435, 515. 
 Kimball v. Rutland etc. R. Co., 26 Vt. 
 
 247. p. 386. 
 King V. Franklin, 1 Fost. & Fin. 360. 
 
 pp. 365, 470. 
 Kinney v. Central R. Co., 32 N. J. L. 
 
 407 ; s. G. 34 N. J. L. 513. pp. 44, 386, 
 
 400, 402. 
 
 c 17 How. 367 ; 2 Cent. L. J. 367. o 47 Ind. 
 485 ; 20 Minn. 129. 
 
 Kinney v. Neil, 1 McLean, 540. p. 556. 
 ICinsley v. Lake Shore etc. R. Co., 125 
 
 Mass. 54 ; s. c. 19 Alb. L. J. 113. pp. 
 
 369, 370, 517, 518, 520. 
 Kisten v. Hildebrand, 9 B. Mon. 72. 
 
 p. 531. 
 Klein v. Hamburg Anaerican Packet 
 
 Co., 3 Daly, 390. p. 533. 
 Klein v. Jewett, 2G N. J. Eq. 474. pp. 
 
 233, 269, 564, 571, 572. 
 
 Kline v. Central Pacific R. Co., 37 Cal. 
 
 400; s. c. 39 Cal. 587. p. 375. 
 
 C 57 Me. 255 ; 40 Cal. 19 ; 5 N. Y. S. C. (T. & 
 C.) 480; 3 Hun, 334; 48 Miss. 117, 118, 123. 
 Knapp V. Dagg, 18 How. Pr. 165. p. 
 
 294. 
 Knight V. Pontchartrain R. Co., 23 La. 
 
 An 462. pp. 226, 267. 
 Knight V. Portland etc. R. Co., 56 Me. 
 
 234. pp. 107, 108, 109, 269, 433. 
 c 59 Me. 187; .39 Ind. 586. 
 
 Knowlton v. Erie R. Co., 19 Ohio St. 
 
 260. pp. 387, 399, 400. 
 
 c 47 Ind. 486; 17 How. 369. 
 Koons V. St. Louis etc. R. Co., 65 Mo. 
 
 592. p. 293. 
 
 L. 
 
 Lackawanna etc. R. Co. v. Chenewith, 
 
 52 Pa. St. 382-. pp. 52, 332, 345, 399. 
 
 c 59 Pa. St. 250 ; 86 Pa. St. 145 ; 58 Me. 195 ; 
 51 N. Y. 395 ; 20 Minn. 135. 
 Lacon v. Page, 48 111. 499. p. 220. 
 Lafayette etc. R. Co. v. Ehman, 30 Ind. 
 
 83. p. 558. 
 Lafayette etc. R. Co. v. Sims, 27 Ind. 
 
 59. pp. 260, 554. 
 
 c 52 N. H. 604. 
 
 Laing v. Colder, 8 Pa. St. 479. pp. 
 191, 192, 194, 211, 258, 386, 525, 526, 
 550, 571. 
 c 7 Ind. 458; 38 Ga. 432; 64 Pa. St. 229, 230; 
 
 17 How. 368 ; 47 Ind. 486 ; 57 Pa. St. 344 ; 45 Pa. 
 St. 215; 18 N. Y. 411; 11 Cusli. 99; 30 Pa. St. 
 239 ; 76 Pa. St. 513 ; 4 Iowa, 550 ; 6 Am. L. Reg. 
 341; 51 111. 339; 6 Nev. 238, 239; 39 Iowa, 249; 
 16 Pa. St. 77; 55 Pa. St. 59. ? 18 N. Y. 538, 
 540, 641. 
 
 Lake Shore etc. R. Co. v. Greenwood, 
 
 79 Pa. St. 373. pp. 343, 344, 377. 
 Lake Shore etc., R. Co. v. Miller, 25 
 
 Mich. 274. p. 294. 
 Lamb v. Palk, 9 Car. & P. 629. p. 36. 
 
 c 5 Robt. 538 ; 35 How. Pr. 462 ; 14 How. 
 487; 1 Am. L.Reg. 402. ? 7 Best & S. 139. 
 Lambeth v. North Carolina, 66 N. C. 
 
 494. pp. 227, 267, 556. 
 
 c 30 Ohio St. 234. 
 Landrigan v. The State, 31 Ark. 50. 
 
 p. 350. 
 Lane v. Atlantic Works, 107 Mass. 104. 
 
 p. 551. 
 Lane v. Cotton, 1 Salk. 143. p. 493. 
 Lane v. Crombie, 12 Pick. 177. p. 
 
 551. 
 
 c29 Me. 310; 54 Mis.s. 395; 8 Nev. 114; 7 
 Wis. 531; 6 Gill, 206; 6 Gray, 70; 4 Gray, 180; 
 14 Allen, 431; 21 Pick. 147; 13 lU. 5S7; 19 
 Conn. 576; 10 Mete. 365; 24 N. J. L. 270, 284; 
 
 18 N. Y. 252 ; 22 N. H. 563 ; 7 Wis. 431 ; 17 
 Mich. 119 ; 3 La. An. 646 ; 20 111. 490 ; 2 Woodb. 
 & M. ;345; 2 llilt. 39; 34 Cal. 164; 25 Me. 49; 16 
 Pa. St. 468; 20 Ohio, 446; 11 Mete. 444; 4 N. Y. 
 360 ; 2 Cush. 605 ; 12 Mete. 417 ; 42 Ind. 343 ; 7 
 Gray, 97 ; 6 Iowa, 452, 453 ; 5 Duer, 24, 25. 27. 
 ? 20 N. Y. 71. 
 
 Latch V. Rumner R. Co., 27 L. J. 
 
 (Exch.) 155. pp. 214, 406, 414. 
 Law V. Illinois etc. R. Co., 32 Iowa, 
 
 534. p. 343.
 
 TABLE OF CASES CITED. 
 
 XXXIX 
 
 Lawrence v. Barker, 5 Wend. 305. p. 
 
 654. 
 Lawrence v. New York etc. R. Co., 36 
 
 Conn. 63. p. 386. 
 Lawrenceburgh etc. R. Co. v. Mont- 
 gomery, 7 Ind. 474. pp. 265, 331, 
 
 345. 
 
 c 36 Mo. 434; 58 Me. 194; 57 N. T. 392. 
 Le Barron v. East Boston Ferry Co., 11 
 
 Allen, 312. pp. 208, 209, 213, 215. 
 
 c 97 Mass. 368; 109 Mass. 406 ; 14 Allen, 467. 
 Le Caux v. Eden, 1 Doug. 572. p. 460. 
 Le Conteur v. London etc. R. Co., L. 
 
 R. 1 Q. B. 54; s. c. 12 Jur. (n. 8.) 
 
 266; 35 L. J. (Q. B.) 40; 14 Week. 
 
 Rep. 80; 13 L. T. (n. s.) 325; 6 Best 
 
 & S. 961. p. 516. 
 
 c 3 C. P. Div. 226; L. R. 6 0. P. 50, 51 ; 40 L. 
 J. (C. P.) 12; Irish Rep. 10 C. L. 77; 32 Wis. 
 92. 
 
 Lee V. Grand Trunk R. Co., 36 Upper 
 
 Canada Q. B. 350. pp. 511, 523, 524. 
 Leeson v. Holt, 1 Stark. 186. pp. 497, 
 
 499. 
 Leman v. Gordon, 8 Car. & P. 392. p. 
 
 467. 
 Lesher v. Wabash Nav. Co., 14 m. 85. 
 
 p. 418. 
 Lester v. Pittsford, 7 Vt. 158. p. 553. 
 Levering v. Union Transp. Co., 42 Mo. 
 
 88. p. 3S6. 
 Lewellen (The), 4 Ben. 156. p. 482. 
 Lewis V. London etc. R. Co., L. R. 9 
 
 Q. B. 66; s. c. 43L.J. (Q. B.)8. pp. 
 
 230, 232, 268. 
 
 c 44 L. J. (Q. B.) 113; L. R. 10 Q. B. 273; 36 
 Upper Canada Q. B. 369. d L. R. 9 C. P. 133, 
 134; 43 L.J. (C. P.) 139. 
 Liddy v. St. Louis R. Co., 40 Mo. 506. 
 
 p. 245. 
 Lillis V. St. Louis etc. R. Co., 64 Mo. 
 
 464. pp. 69, 71, 340, 376, 377. 
 
 a 66 Mo. 595. 
 
 Limpus V. London General Omnibus 
 
 Co., 1 Hurl. & Colt. 526. pp. 371, 
 
 373. 
 Lincoln v. Saratoga etc. R. Co., 23 
 
 Wend. 425. pp. 569, 572. 
 
 c 1 Duer, 239 ; 63 Barb. 266 ; 48 N. H. 545. 
 Lindo V. Rodney, 1 Doug. 591. p. 460. 
 Lindsay v. Central etc. R. Co., 46 Ga. 
 
 447. p. 375. 
 
 Linnehan v. Sampson, 8 Cent. L. J. 
 
 442. p. 20. 
 Lion (The), L. R. 2 Adm. 102; s. c. 38 
 
 L.J. (Adm.)51. p. 463. 
 Liscomb v. New Jersey Transp. Co., 6 
 
 Lans. 75. p. 107. 
 Little Miami R. Co. v. Wetmore, 19 
 
 Ohio St. 110. pp. 370, 553. 
 
 c 21 Ohio St. 524 ; 44 Iowa, 318 ; 28 Ohio St. 
 29. 
 Lloyd 17. Hannibal etc. R. Co., 53 Mo. 
 
 509. pp. 227, 267, 553, 584. 
 
 c 66 Mo. 599 ; 2 Cent. L. J. 541 ; 59 Mo. 37. 
 Lockhart v. Lichtenthaler, 46 Pa. St. 
 
 161; s. c. 4 Am. L. Reg. (N. 8.) 16; 
 
 pp. 52, 283, 288. 
 
 c 52 Pa. St. 387; 11 Abb. Pr. (N. S.) 420; 36 
 N. J. L. 228, 229 ; 57 Pa. St. 192. ? 43 Wis. 527 ; 
 6 Cent. L. J. 430. 
 London etc. R. Co. v. James, L. R. 8 
 
 Ch. 241. p. 475. 
 
 c 2 App. Cas. 808. 
 London etc. R. Co. v. Watson, 4 C. P. 
 
 Div. 118; s. c. 3 C. P. Div. 429; 27 
 
 Week. Rep. 614. p. 337. 
 Long V. Home, 1 Car. & P. 610. pp. 
 
 68, 236. 
 Longmore v. Great Western B. Co., 19 
 
 C. B. (N. 8.) 183. pp. 90, 91, 92, 
 
 101,107. (In full, p. 81.) 
 
 c 56 Me. 243, 245 ; 26 Iowa, 145 ; 12 Jur. (N. S.) 
 273. <1 L. R 1 C. P. 301, 303, 304, 305 ; 35 L. J. 
 (C. P.) 135. 
 
 Lord V. Midland R. Co., L. R. 2 C. P. 
 345. p. 68. 
 
 Lords Bailiffs-Jurats of Romney Marsh 
 V. Trinity House, L. R. 5 Exch. 204 
 (affirmed, L. R. 7 Exch. 247) ; s. c. 2 
 Thonip. on Neg. p. 1063. p. 220. 
 
 Loriug V. Aborn, 4 Cush. 608. p. 336. 
 c 22 Barb. 133. 
 
 Losee v. Buchanan, 51 N. Y. 476; s. c. 
 61 Barb. 86; 1 Thomp. on Neg. 47. 
 p. 222. 
 c 68 Me. 165; 47 Ind. 271; 56 N. Y. 126; 1 
 
 N. Y. S. C. (T. & C.) 455; 6 Hun, 324; 38 N. J. 
 
 L. ?>46; 41 Wis. 73; 57 N. Y. 572; 53 N. H. 448; 
 
 13 Am. L. Reg. (N. 8.) 371. 
 
 Louisville etc. R. Co. v. Case*s Admin- 
 istrator, 9 Bush, 728. p. 290. 
 
 Louisville etc. R. Co. v. Mahan, 8 Bush, 
 184. pp. 534, 536. 
 c 73 111. 513.
 
 xl 
 
 TABLE OF CASES CITED. 
 
 Louisville etc. Canal Co. v. Murphy, 9 
 
 Bush, 552. pp. 552, 562. 
 
 c 5 Reporter, 720 ; 13 Bush, 642; 10 Bush, 
 273; 9 Bush, 731; 12 Bush, 47. 
 Louisville etc. R. Co. v. Sickings, 5 
 
 Bush, 1. p. 257. 
 
 c 7 Bush, 2:59; 39 Md. 350. 
 Louisville etc. R. Co. v. Yandell, 17 
 
 B. Mou. 580. p. 49. 
 
 c 7 Bush, 239; 17 B. Mon. 598. d 7 Bush, 
 10. 
 Lovett V. Hobbs, 2 Show. 128. p. 26. 
 
 c 12 Ga. 228. 
 Lovett V. Salem etc. R. Co., 9 Allen, 
 
 557. pp. 228, 267, 374, 375, 443, 547. 
 
 c55Ind. 50; 37 Cal. 405; 48 Miss. 117, 118, 
 123; 28 Ohio St. 30; 5 N. Y. S. 0. (T. & C.) 
 480; 3 Hun, 334; 64 N. Y. 138; 56 Ind. 518; 52 
 N. H. 554. 
 Lower Macungie Township v. Merk- 
 
 hoffer, 71 P^i. St. 276. p. 220. 
 
 c 81 Pa. St. 50; 13 Hun, 87. 
 Lucas V. Milwaukee etc. R. Co., 33 
 
 Wis. 41. pp. 52, 345. 
 Lucas V. New Bedford etc. R. Co., 6 
 
 Gray, 64. pp. 49, 50, 225, 227, 252, 
 
 267, 334, 551. 
 
 c 8 Allen, 230, 235, 448; 57 Barb. 651; 63 N. 
 Y. 560; 59 Mo. 34; 1 Allen, 190; 8 Kan. 517; 3 
 Allen, 22; 14 Allen, 4.33; 106 Mass. 275; 101 
 Mass. 446 ; 58 Me. 199 ; 49 N. Y. 52 ; 16 Gray, 
 507; 17 Mich. 119, 120; 4 Allen, 289; 95 U. S. 
 443. <1 104 Mass. 141. 
 Lucas V. Taunton etc. R. Co., 6 Gi'ay, 
 
 70. p. 329. 
 
 c 6 Cent. L. J. 47; 2 Cent. L. J. 540; 59 Mo. 
 34. 
 Luxford V. Large, 5 Car. & P. 421. p. 
 
 275. 
 Lygo V. Newbold, 9 Exch. 302. pp. 
 
 329, 334. 
 
 Cl9 Ohio St. 411; 47 Ind. 48; 55 How. Pr. 
 173; 48 Pa. St. 221; 4 Allen, 286; 25 Mich. 7; 
 6 Gray, 70; 68 Me. 558; 34 Upper Canada Q. 
 B. 459; 58 Me. 198; 57 N. Y. 391 ; 59 Pa. St. 142, 
 143; 23 Upper Canada C. P. 551. 
 Lynam v. Union R. Co., 114 Mass. 83. 
 
 pp. 261, 446. 
 Lynch v. Nurdin, 1 Q. B. 29; s. c. 4 
 
 Per. & Dav. 672 ; 5 Jur. 797 ; 2 Tliomp. 
 
 onNeg. 1140. p. 275. 
 
 c 69 Pa. St. 215; 6 Gray, 71; 17 Wall. 660; 
 1 Head, 619, (;20 ; 51 Me. 3.33 ; Irish Rep. 15 C. 
 L. 345; 24 N. J. L. 832; 8 Minn. 168; 31 Miss. 
 193, 197, 198; 47 Miss. 422; 52 Mo. 439, 440; 75 
 
 III. 97; .V2 N. H. 554; 9 Wis. 212, 219; 6 N. Y. 
 410; 24 Vt. 496; 22 X. J. L. 189; 18 Cal. 356; 22 
 Vt. 225, 22G ; 35 N. Y. 211 ; 48 Pa. St. 221, 232 ; 60 
 Mo. 418, 420; 35 N. H. 279; 15 Ind. 489; 31 Pa. 
 St. 378 ; 47 Pa. St. 304 ; 3 Cush. 305 ; 13 111. 588, 
 589; 24 Md. 125; 9 O. B. 420; 19 Conn. 511, 512, 
 572, 573, 574; 5 El. & Bl. 856; 2 Jur. (N. S.) 118 ; 
 
 25 L. J. (Q. B.) 12-t ; 18 Ohio St. 410 : .36 Mo. 491 ; 
 2 Cush. 543; 50 Mo. 468; 14 Jur. 336: 19 L. J. 
 (C. P.) 200; 18 N. Y. 252; 16 111. 202; 20 111. 494. 
 496; 1 Sweeny, 543; 3 Q. B. Div. 331; 7 Cent. 
 L. J. 12; 17 Alb. L. J. 506; 1 Denio, 99; 26 
 Conn. 600; 1 Hurl. & N. 780; 3 Jur. (N. s.) 396; 
 
 26 L. J. (Exch.) 172; 47 Ind. 48; 17 Mich. 118; 
 6 Daly, 11 ; 12 Cal. ,5.59 ; 20 111. 496 ; 59 Pa. St. 142, 
 143; 53 Ala. 79; 14 Minn. 96; 65 Pa. St. 276; 21 
 Minn. 212, 213; 1 Keyes, 573; 33 How. Pr. 200; 
 2 Abb. App. Dec. 381; 27 Conn. 409; 9 Exch. 
 .305, 306; 18 Ga. 686; 13 Ga. 88; 38 N. Y. 458; 4 
 Gray, 405, 407, 410; 55 How. Pr. 172; 17 Iowa, 
 463; 14 Allen, 298; 32 Me. 51, ,53; 24 N. J. L. 
 271; 22 Mo. 378; 63 N. C. 349; 66 Barb. .50; 15 
 Abb. Pr. (N. S.) :}23; 27 Gratt. 476; 41 N. Y. 
 46; 9 Exch. 304; 18 N. Y. 252; 23 Upper Can- 
 ada C. P. 551 ; 37 Mo. .550, 5.53. ? 60 N. Y. 334 ; 
 
 27 Ind. 515, 516; 4 Allen, 2S6, 287; 11 Allen, 
 519. 
 
 L3'on V. Mells, 5 East, 428. pp. 115, 
 136, 143, 144, 157, 357. 
 
 M. 
 
 Mabley v. Kittleberger, 37 Mich. 360. 
 
 p. 2S4. 
 Macauley v. New York etc. R. Co., 67 
 
 N. Y. 602. p. 220. 
 Macdougall v. Torrance, 4 Lower Can- 
 ada Jur. 132. pp. 512, 538. 
 Macklin v. New Jersey Steamboat Co., 
 
 9 Am. L. Reg. (x. s.) 237; s. c. 7 
 
 Abb. Pr. (X. s.) 229. pp. 518, 529, 
 
 530. 
 
 C32 Wis. 91, 97. o2 Ch. Leg. N. 397; 2 
 Abb.Pr. (N. s.) 52. 
 Macon etc. R. Co. v. Johnson, 38 Ga. 
 
 409. pp. 260, 560. 
 
 c52Ga. 468; 53 G a. 16, 17. 
 Macrow v. Great Western R. Co., L. R. 
 
 6 Q. B. 612; s. c. 40 L. J. (Q. B.) 
 
 300; 24 L. T. (n. s.) 618; 19 Week. 
 
 Rep. 873. pp. 507, 510, 512. 
 
 c 32 Wis. 98. 
 Mad River etc. R. Co. v. Fulton, 20 
 
 Ohio, 319. p. 538. 
 
 c 7 Rich. L. 163; 1 Hilt. 282; 6 Ind. 247. 
 Madan v. Sherrard, 10 Jones & Sp. 
 
 353; 3 Abb. N C. 525. p. 527.
 
 TABLE OF CASES CITED. 
 
 xli 
 
 Maguire v. Middlesex R. Co., 115 Mass. 
 
 239. pp. 261, 271, 444, 556. 
 Maher v. Central Park R. Co., 7 Jones 
 
 & Sp. 52; s. c. 67 N. Y. 52. pp. 
 
 445, 577. 
 Maillard v. Lawrence, 16 How. 251. 
 
 p. 486. 
 Malecek v. Tower Grove R. Co., 57 Mo. 
 
 17. pp. 365, 368, 370, 559, 575, 581. 
 
 c 66 Mo. 541. 
 Mali V. Lord, 39 N. Y. 381. p. 371. 
 Malone v. Boston etc. R. Co., 12 Gray, 
 
 388. pp. 524, 547. 
 
 c 29 Ind. 363 ; 14 Allen, 457. 
 Mallory v. Griffey, 85 Pa. St. 275. p. 
 
 552. 
 Malton V. Nesbit, 1 Car. & P. 70. p. 
 
 660. 
 
 c 1 McLean, 545. 
 Mangam v. Brooklyn etc. R. Co., 38 
 
 N. Y. 455. p. 562. 
 
 c 47 N. Y. 322, 324 ; 68 Me. 556 ; 17 Wall. 665 ; 
 60 N. Y. 333 ; 38 Wis. 629 ; 64 N. Y. 18 ; 55 Ind. 
 50; 5 Hun, 481; 66 Me. 381; 2 N. Y. S. C. (T. & 
 C.) 646 ; 9 Bush, 531 ; 63 X. Y, 106, 107 ; 48 How. 
 Pr. 81; 7 Jones & Sp. 351 ; 3 Abb. App. Dec. 
 277; 56 Ind. 518; 66 Barb. 56; 15 Abb. Pr. 
 (N. S.) 328; 45 Mo. 74; 2 .Jones & Sp. 485; 43 
 How. Pr. 410; 15 N. Y. 408; 40 Barb. 207, 208. 
 Manhattan (The), 2 Ben. 88; s. c. 7 
 
 Int. Rev. Rec. 28. p. 479. 
 Mann v. Birchard, 40 Vt. 326 ; s. c. 7 
 
 Am L. Reg. (n. s.) 702. p. 386. 
 
 c 17 How. 367. ? 47 Ind. 486. 
 Maples V. New York etc. R. Co., 38 
 
 Conn. 557. pp. 69, 336, 338, 375. 
 Marfell v. South Wales R. Co., 8 C. B. 
 
 (X. 8.) 525; s. c. 7 Jur. (n. s.) 240; 
 
 29 L. J. (C. P.) 315; 8 Week. Rep. 
 
 765; 2 L. T. (n. s.) 629. p. 84. 
 Markhara v. Brown, 8 N. H. 523. pp. 
 
 4, 3G4. 
 Maroney v. Old Colony R. Co., 106 
 
 Ma.ss. 153. p. 69. 
 
 e 36 Wis. 675. «1 48 Vt. 235. 
 Marquette v. Chicago etc. E. Co., 33 
 
 Iowa, 563. pp. 301, 302, 375. 
 Marshall v. Bazin, 7 N. Y. Leg. Obs. 
 
 3i2. p. 467. 
 Marshall v. Wellwood, 38 N. J. L. 339. 
 
 p. 222. 
 Mar.^hall v. York etc. R. Co., 11 C. B. 
 
 655; 16 Jur. 124; 21 L. J. (C. P.) 34; 
 
 7 Eng. Law & Eq. 519. p. 524. 
 
 c 34 Upper Canada Q. B. 462; 19 Ohio St. 
 655. 
 Martin v. Great Northern R. Co., 16 
 
 C. B. 179 ; s. c. 3 Cora. Law Rep. 817 ; 
 
 1 Jur. (N. s.) 613 ; 30 Eng. Law & 
 
 Eq. 473. pp. 74, 78, 99, 101, 107, 108, 
 
 109, 110, 269. 
 
 c 56 Me. 243 ; 26 Iowa, 143, 145 ; 18 N. Y. 252. 
 Martinez v. Gerber, 3 Scott's N. R. 
 
 386;s. c. 3 Man. & G. 88. p. 547. 
 Maryland v. Northern etc. R. Co., 18 
 
 Md. 193. p. 543. 
 Masters v. Warren, 27 Conn. 293. p. 
 
 571. 
 
 c 33 Conn. 55 ; 44 Iowa, 322 ; 6 Nev. 230, 233. 
 Matteson v. New York etc. R. Co., 62 
 
 Barb. 364. pp. 559, 564, 565. 
 
 c 11 Nev. 369. 
 Mattison v. New York etc. R. Co., 57 N. 
 
 Y. 552; s. c. 19 Alb. L. J. 359; 8 Re- 
 porter, 440. pp. 532, 534, 536. 
 Maundv. Monmouth Canal Co., 4 Man. 
 
 &G. 452. p. 359. 
 Maury v. Talmadge, 2 McLean, 157. 
 
 pp. 199, 238, 240, 241, 242, 558, 560. 
 
 c 48 N. H. 316; 11 Gratt. 712; 17 111. 410; 1 
 Abb. Adm. 359. 
 
 Maviug V. Todd, 1 Stark. 72. p. 496. 
 Maverick v. Eighth Avenue R. Co., 36 
 
 N.Y. 378. p. 433. 
 
 c 5 Hun, 526; 63 Barb. 266. 
 Max V. Roberts, 12 East, 89. p. 542. 
 May V. Davidson, 18 Minn. 523. p. 223. 
 May V. Princeton, 11 Mete. 442. p. 551. 
 Mayhew v. Boyce, 1 Stark. 423. pp. 
 
 237, 240. 
 Mayo V. Boston etc. R. Co., 104 Mass. 
 
 137. pp. 270, 551. 
 
 c 109 Mass. 521; 115 Mass. 199; 106 Mass. 
 462; 120 Mass. 262, 266; 107 Mass. 108; 123 
 Mass. 515; 6 Cent. L. J. 108; 5 Reporter, 238; 
 114 Mass. 87, 88; 112 Mass. 47; 110 Mass. 339; 
 6 Cent. L. J. 138; 5 Reporter, 238; 121 Mass. 
 338; 8Cent. L. J.444. 
 Mayor v. Humphreys, 1 Car. & P. 251. 
 
 p. 555. 
 
 c 17 111.552; 7 Hill, 539. 
 McCahau v. Hirst, 7 Watts, 175. p. 542. 
 McCall V. Forsyth, 4 Watts & S. 17'J. 
 
 pp. 544, 545. (In full, p. 541.) 
 
 c 17 111. 412.
 
 xlii 
 
 TABLE OF CAS?:S CITED. 
 
 McCarthy v. Chicago etc. R. Co., 41 
 
 Iowa, 432. p. 376. 
 McCarthy v. Dublin etc. R. Co., Irish 
 
 Rep. 3 C. L. 511. p. 337. 
 McCartliy v. Guild, 12 Mete. 291. p. 
 
 547. 
 
 c 11 Gray, 30; 117 Mass. 543. 
 McCawley v. Furness R. Co., 42 L. J. 
 
 (Q. B.) 4; s.c. L. R. 8 Q. B. 57; 21 
 
 Week. Rep. 140 ; 27 L. T. (n. S.) 485. 
 
 pp. 400, 401, 402. 
 McClary v. Sioux City etc. R. Co., 3 
 
 Neb. 44. pp. 199, 214. 
 McClenaghan v. Brock, 5 Rich. L. 17. 
 
 pp. 370, 563. 
 
 c 9 Rich. L. 93 ; 30 Ala. 611 ; 50 Mo. 108. 
 McClure v. Philadelphia etc. R. Co., 34 
 
 Md. 532. pp.70, 71. 
 
 c 51 Cal. 428 ; 5 Daly, 51 ; 61 Barb. 613. 
 McCormick v. Hudson River R. Co., 4 
 
 E. D, Smith, 181. pp. 434, 435, 512. 
 
 c 30 N. Y. 617. 
 McCormick v. Pennsylvania etc. R. Co., 
 
 49N. Y. 303. pp.28, 519, 538. 
 McDonald v. Chicago etc. B. Oo., 26 
 
 Iowa, 124; s. c. 29 Iowa, 170. pp. 
 
 104, 114, 269, 565, 572. (In full, p. 
 
 93.) 
 
 c 28 Mich. 453; 48 Vt. 106; 10 Jones & Sp. 
 161; 39 Iowa, 586. 
 McDougall V. Allan, 6 Lower Canada 
 
 Jur. 233; s. c. 12 Lower Canada Rep. 
 
 321. pp. 486, 512, 530. 
 McElroy v. Nashua etc. R. Co^., 4 
 
 Cush. 400. pp. 201, 220, 357, 412. 
 
 (In full, p. 409.) 
 
 c 56 Me. 243; 3 Cliff. 422; 21 Ind. 283, 288, 
 297; 97 Mass. 363; 9 Cent. L. J. 132; 8 Allen, 
 233 ; 48 N. H. 315 ; 5 Hun, 526 ; 11 Allen, 505. 
 McGill V. Rowaud, 3 Pa. St. 451. pp. 
 
 512, 524, 539. 
 
 c 41 Miss. 678 ; 14 Fla. 556 ; 14 Pa. St. 133 ; 9 
 Lower Canada, 180; 13 111. 750; 6 Cush. 72; 18 
 111.420; 11 Humph. 422. 
 McGloin V. Henderson, 6 La. 715. p. 
 
 466. 
 McGrath v. Hudson River R. Co., 32 
 
 Barb. 144; s. c. 19 How. Pr. 211. p. 
 
 563. 
 
 c 3 Daly, 385; 32 Barb. 164; 35 N. Y. 37; 29 
 Md. 439; 2 Jones & Sip. 486; 43 How. Pr.411; 
 33 Barb. 509. 
 
 McGuire v. The Golden Gate, McAU. 
 
 104. p. 470. 
 Mclntyre v. New York etc. R. Co., 43 
 
 Barb. 532 ; s. c. 37 N. Y. 288. p. 265. 
 
 c 30 Ohio St. 234, 461, 464; 67 N. Y. 55; 33 
 Iowa, 569; 63 Barb. 266; 49 N. Y. 53, 55. 
 McKeon v. Citizens' R. Co., 42 Mo. 79. 
 
 pp. 368, 442, 446, 575. 
 
 c 57 Me. 252; 50 Mo. 140. 
 McKinley v. Chicago etc. R. Co., 44 
 
 Iowa, 314; s. c. 17 Am. L. Reg. 69. 
 
 pp. 345, 369, 374, 572, 581. 
 
 c 45 Iowa, 573. d 47 Iowa, 88; 10 Ch. Leg. 
 N. 88. 
 
 McKinney v. Neil, 1 McLean, 540. pp. 
 
 114, 199,211,266,411. 
 
 c 38 Miss. 275; 4 Iowa, 548, 550; 2 Mont. 
 .525, 526 ; 44 Ind. 204 ; 17 111. 410, 411, 552 ; 27 La. 
 An. 552 ; 48 K. H. 316 ; 16 Barb. 117 ; 15 III. 471 ; 
 16 m. 567, 569, 570 ; 4 G. Greene, 558, 560. 
 McLeans. Burbank, 11 Minn. 277. pp. 
 
 211,412,414. 
 McMahon v. Davidson, 13 Minn. 357. 
 
 p. 223. 
 McManus v. Crickett, 1 East, 106; s. c. 
 
 2 Thomp. on Neg. 805. pp. 358, 363. 
 
 c 22 N. Y. 367 ; 2 Har. & G. 319 ; 3 Head, 473 ; 
 12 Iowa, .',49; 18 Mo. 368; 4 Mete. 55; 50 Mo. 
 108; 20 Ohio, 441; 26 Miss. 4)0; 4 Man. & G. 
 58; 12 Minn. 373; 6 Reporter, 404; 18 AJb. L. 
 J. 91; 48 Miss. 118, 125; 5 Cush. 594; 31 N. J. 
 L. 231 ; 4 So. Car. 68 ; 64 N. Y. 134 ; 7 Cush. 386 ; 
 19 Wend. 345, 347; 43 N. Y. 569; 12 Allen, 53; 
 3 East, 602; 6 Hurl. & X. 364, 365; 13 111. 285; 
 47 N. Y. 127; 7 Yerg. 379; 24 Conn. 266; 46 N. 
 H. 2 53; 46 .V. Y. 27; 57 Me. 233; 38 Miss. 278; 
 3 Cliff. 423. ? 2 Mo. App. 45; 36 Wis. 669; 30 
 L.J. (Exch.)191. 
 McMicken v. Brown, 6 Mart. (n. s.) 86. 
 
 p. 554. 
 McPadden v. New York etc. R. Co., 44 
 
 N.Y. 478; s. c. 47 Barb. 247. pp.199, 
 
 220. 
 
 c 66 N. Y. 320 ; 58 X Y. 139. 
 McQuesten v. Sauford, 40 Me. 117. p. 
 
 513. 
 McQuiliken v. Central Pacific R. Co., 
 
 50 Cal. 7. p. 552. 
 Meesel v. Lynn etc.R. Co., 8 Allen, 234. 
 
 pp. 261, 444. 
 
 c 100 Mass. 212 ; 33 Iowa, 569. 
 Meier v. Pennsylvania R. Co., 64 Pa. St. 
 
 225. pp. 199, 200, 211, 212, 215. 
 
 c 2 Col. 457; 76 Pa. St. 513.
 
 TABLE or CASES CITED, 
 
 xliii 
 
 Memphis etc. R. Co. v. Chastine, 54 
 
 Miss. 503. pp. 376, 556. 
 Memphis etc R. Co. v. Whitfield, U 
 
 Miss. 466. pp. 66, 556, 562, 565, 571, 
 
 573. 
 
 C 30 Ohio St. 464. 
 
 Merchants' Bank v. State Bank, 10 
 
 Wall. 605. p. 252. 
 Merrill v. Grinnell, 30 N. Y. 594. pp. 
 
 611, 520, 521, 538. 
 
 c 15 Mich. 142 ; 42 N. Y. 328 ; 9 Hun, 671 ; 56 
 Me. 72 ; 8 Am. L. Reg. 400. 
 Merrill v. Hampden, 26 Me. 234. p. 
 
 552. 
 
 c 65 Me. 552 ; 27 Vt. 465 ; 35 Me. 104 ; 35 N. 
 H. 276; 37 Me. 252. 
 Merrimack (The), 1 Ben. 201. pp. 
 
 463, 471. 
 
 c 3 Sawyer, 314. 
 Merryweather v. Nlxan, 8 Term Rep. 
 
 186. p. 542. 
 MetcaLf v. Baker, 2 Jones & Sp. 10; 
 
 s. c. 11 Ablj. Pr. (N. s.) 431. p. 
 
 294. 
 Metropolitan R. Co. v. Jackson, 3 App. 
 
 Cas. 193. pp. 200, 206, 214, 225, 
 
 264. 
 Meyer v. Pacific R. Co., 40 Mo. 153. 
 
 p. 245. 
 Meyer v. Second Avenue R. Co., 8 
 
 Bosw. 305. p. 367. 
 Michigan R. Co. v. Heaton, 31 Ind. 397. 
 
 p. 389. 
 Michigan etc. R. Co. v. Carrow, 73 111. 
 
 348. pp. 511, 512, 558. 
 Michigan etc. R. Co. v. Coleman, 26 
 
 Mich. 440. p. 208. 
 Michigan etc. R. Co. v. Dolan, 32 Mich. 
 
 510. p. 208. 
 Michigan etc. R. Co. v. Gougar, 55 111. 
 
 503. p. 558. 
 Michigan etc. R. Co. v. Lantz, 29 Ind. 
 
 528. pp. 552, 553. 
 
 c 47 Ind. 45 ; 37 Ind. 547 ; 42 Ind. 341 ; 35 Ind. 
 im. ?48Cal. 426. 
 Michigan etc. R. Co. v. Meyres, 21 111. 
 
 627. pp. 513, 515. 
 
 C 78 111. 618. 
 Iilichigan etc. R. Co. v. Oehm, 56 111, 
 
 293. pp. 511, 523, 537. 
 Lliddleton v. Fowler, 1 Salk. 282. p. 
 
 521. 
 
 Midland R. Co. v. Bromley, 17 C. B. 
 
 372; s. c. 2 Jur. (N. s.) 140; 26 L. 
 
 J. (C. P.) 94. p. 532. 
 
 c 12 Am. L. Reg. 373 ; 31 Wis. 632. 
 Milan (The), 1 Lush. 386. pp. 285, 
 
 475. 
 Milk V. Middlesex etc. R. Co., 99 Mass. 
 
 167. p. 444. 
 Miller v. St. Louis R. Co., 5 Mo. App. 
 
 471 ; S.C.6 Cent. L. J. 335. pp. 212, 
 
 259, 261, 446. 
 Milliman v. New York etc. R. Co., 66 
 
 N. Y. 642; s. c. 6 Thomp. & C. 
 
 585; 3 Abb. N. C. 525. pp. 227, 
 
 271. 
 Milwaukee etc. R. Co. v. Arms, 3 Cent. 
 
 L. J. 220. pp. 573, 574. 
 
 C 18 Kan. 523. 
 
 Milwaukee etc. R. Co. v. Finney, 10 
 
 Wis. 388. p. 362, 364, 575. 
 
 c 44 Iowa, 318 ; 57 Me. 215, 248 ; 42 Wis. 666, 
 673, 674; 3 Cliff. 428; 36 Wis. 670, 671, 675, 676; 
 20 Wall. 541; 106 Mass. 189; 2 Mont. 521. 
 Milwaukee etc. R. Co. v. Hunter, 11 
 
 Wis. 160. pp. 552, 553. 
 
 c 18 Wis. 332 ; 34 Iowa, 161 ; 41 Wis. 108, 
 109. 
 Minor v. Chicago etc. R. Co., 19 Wis. 
 
 40. pp. 532, 534. 
 
 c 73 111. 515. 
 Minter v. Pacific R. Co., 41 Mo. 503. 
 
 pp. 514, 523. 
 
 c 54 Mo. 389. 
 
 Mississippi etc. R. Co. v. Kennedy, 41 
 
 Miss. 671. pp. 510, 511, 512, 521, 537. 
 
 d 2 Ch. Leg. N. 397; 2 Abb. U. S. 51; 50 
 Miss. 319. 
 Missouri etc. R. Co. v. Weaver, 16 Kan. 
 
 456. pp. 577, 579. 
 
 C 18 Kan. 523. 
 
 Mitcliell V. Western etc. R. Co., 30 Ga. 
 
 22. p. 226. 
 Mobile etc. R. Co. v. Hopkins, 41 Ala. 
 
 486. pp. 524, 525, 526, 533. 
 
 c20 Minn. 129; 2 Cent. L. J. 367; 41 Ala. 
 647. 
 
 Mobile etc. R. Co. v. McArthur, 43 
 
 Miss. 180. pp. 66, 343, 564. 
 
 c 64 Mo. 475; 50 Miss. 318. 
 Montgomery etc. R. Co. v. Boring, 51 
 
 Ga. 582. pp. 565, 577, 584. 
 Moore v. American Transp. Co., 24 
 
 How. 1. p. 484.
 
 xliv 
 
 TABLE OF CASES CITED. 
 
 Moore v. Central R. Co., 24 N. J. L. 
 
 268. p. 552. 
 
 c 39 N. J. L. 192; 18 N. Y. 252 ; 35 Ind. 466. 
 Moore v. Evans, 14 Barb. 524. pp. 386, 
 
 525. 
 Moore v. Evening Star, 20 La. An. 402. 
 
 pp. 471, 513, 521. 
 
 C 27 La. An. 92. 
 
 Moore v. Fitchburg R. Co., 4 Gray, 465. 
 
 pp. 317, 358, 362, 374. 
 
 c 3 Cliff. 424, 429; 36 Wis. 463; 104 Mass. 
 120, 121; 11 Nev. 364; 36 Wis. 675; 19 111. 374; 
 38 Ind. 126; 57 Me. 215; 12 Allen, 581. d 48 
 Vt. 235. 
 Moore v. Metropolitan R. Co., 42 L. J. 
 
 (Q. B.) 23; s. c. L. R. 8 Q. B. 36. p. 
 
 373. 
 Moore v. Shreveport, 3 La. An. 645. 
 
 p. 553. 
 Morning Star (The), 4 Biss. 62. p. 
 
 481. 
 Morel V. Mississippi Ins. Co., 4 Bush, 
 
 535. p. 257. 
 
 c 5 Bush, 7. 
 Morgan v. Vale of Neath R. Co., 5 Best 
 
 & S. 736; s. c. L. R. 1 Q. B. 149; 35 
 
 L. J. (Q. B.) 23 ; 13 L. T. (n. s.) 564 ; 
 
 14 Week. Rep. 144 (affirming s. c. 5 
 
 Best & S. 570; 10 Jur. (N. s.) 1074; 
 
 33 L. J. (Q. B.) 260; 13 Week. Rep. 
 
 1031). p. 146. 
 
 CL. R. 10 Q. B. 128; 44 L.J. (Q. B.)61 62; 
 86 Pa. St. 440; 2 Exch. Div. .397; 46 L. J. 528; 
 45 L. J. 3S9, :i90 ; 28 lud. 376 ; L. R. 1 C. P. 296 ; 
 L. R. 2 Exch. 32, 33; 4 Hurl. & Colt. 699; 36 
 L. J. (Exch.) 10; 53 Pa. St. 456, 459; 15 Rich. 
 L. 210 ; 7 Ceut. L. J. 453 ; 18 Alb. L. J. 135, 136 ; 
 53 111. 340; 49 Barb. 326; 28 Ind. 376; 3 Exch. 
 Div. 344; 7 Best & S. 681; 3 C. P. Div. 494, 
 498; 13 Allen, 444; 44 Md. 292; 62 Me. 465; 6 
 Reporter, 126; 1 C. P. Div. 167, 168; 59 Pa. St. 
 247, 252. 
 Morris v. Gleason, 1 Bradw. 510. p. 
 
 222. 
 Morris etc. R. Co. v. Ayres, 29 N. J. L. 
 
 393. p. 313. 
 Morris v. Third Avenue R. Co., 1 Daly, 
 
 202. pp. 522, 536. 
 Morrisseij v. Wiggins Ferrij Co., 43 Mo. 
 
 380. p. 257. (In full, p. 243.) 
 Morrison v. Erie R. Co., 56 N. Y. 302. 
 
 pp. 227, 228, 2(57. 
 
 c 63 N. Y. 560; 8 Jones & Sp. 182. 183 
 
 Morse v. Auburn etc. R. Co., 10 Barb. 
 
 621. p. 511. 
 
 c44 Miss. 496; 3 Jones & Sp. 129; 6 Nev. 
 235, 237. 
 Morse v. Connecticut River R. Co., 6 
 
 Gray, 450. pp. 539, 558. 
 
 cm Mass. 51; 56 Ga. 500. 
 Morse v. Richmond, 41 Vt. 435. p. 220. 
 Morse v. Slue, Sir T. Raym. 120; s. c. 
 
 1 Vent. 190. pp. 150, 499. 
 Mosher v. Lawrence, 4 Denio, 421. p. 
 
 554. 
 Mote V. Chicago etc. R. Co., 27 Iowa, 
 
 22. pp. 534, 535, 537. 
 Mount Vernon v. Dusouchett, 2 Ind. 
 
 586. p. 552. 
 
 c 17 Ind 105; 23 Ind. 134; 7 Ind. 83; 42 Ind. 
 343; 5 Ind. 290; 12 Ind 523; 2 Disney, 521; 7 
 Iowa, 489; 10 Ind. 401. 
 
 Mudgett V. Bay State Steamboat Co., 1 
 
 Daly, 151. p. 518. 
 
 c 15 Mich. 138 ; 32 Wis. 92; 2 Daly, 355. 
 Muldowney v. Illinois etc. R. Co., 39 
 
 Iowa, 615; s. c. 36 Iowa, 462. pp. 
 
 552, 571. 
 
 C43 Iowa, 667; 33 Iowa, 60: 40 Iowa, 343, 
 344, 346, 402; 45 Iowa, 664; 38 Iowa, 280; 44 
 Iowa, 320; 68 Me. 105. 
 Mulhado v. Brooklyn etc. R. Co., 30 
 
 N. Y. 370. pp. 227, 444, 445, 561. 
 
 c 28 Mich. 455. 
 
 Mulherrin v. Delaware etc. R. Co., 81 
 
 Pa. St. 366. p. 233. 
 Mulloy V. Backer, 5 East, 316; s. c. 1 
 
 Smith, 447. p. 467. 
 
 c 2 Gray, 360 ; Abb. Adm. 51. 
 Munster v. South-Eastern R. Co., 4 
 
 Jur. (N. s.) 738 ; s. c. 27 L. J. (C. P.) 
 
 308; 4 C. B. (n. s.) 676. pp. 513, 
 
 529. 
 
 c L. R. 6 C. P. 51 ; 40 L. J. (C. P.) 12. 
 Murch V. Concord etc. R. Co., 29 N. H. 
 
 9. pp. 25, 101, 109, 235, 412, 413, 417. 
 
 e56 Me. 2J3; .33 Wis. 63; 26 Iowa, 145; 15 
 Gray, 24; 44 N. H. 332; 40 Miss. 386; 47 N. H. 
 332 ; 46 N. H. 231. d 33 Wis. 56. 
 Murphy v. Commissioners of Emigra- 
 
 tior, 28 Y. N. 134. pp. 28, 520. 
 
 c 3 Daly, 397, 398. 
 Murphy v. Deane, 101 Mass. 455. p. 
 
 551. 
 
 e 105 Mass. 78; 120 Mass. 262; 74 X. C. 658, 
 42 Ind. 343; 68 Me. 558.
 
 TABLE OF CASES CITED. 
 
 xlv 
 
 Murphy v. Chicago etc. R. Co., 45 Iowa, 
 661 ; s. c. o» Iowa, 539. p. 552. 
 c42 Iowa, -W6. 
 
 Murphy v. New York etc. R. Co., 66 
 
 Barb. 125. pp. 557, 560, 561. 
 Murphy v. Staton, 3 Munf . 239. p. 498. 
 Murphy v. Union R. Co., 118 Mass. 228. 
 
 pp. 301, 302, ,303, 375, 443. 
 
 c 28 Ohio St. :•" 
 Muschamp v. Lancaster etc. R. Co., 8 
 
 Mee. & W. 421. pp. 55, 428. 
 Mytton V. Midland R. Co., 4 Hurl. & 
 
 N. 615; s. c. 28 L. J. (Exch.) 385. 
 
 pp. 432, 435. 
 
 c 35 Upper Canada Q. B. .558 ; 5 Hurl. & N. 
 277; 29 L. J. (Exch.) 169; 34 Upper Canada 
 Q. B. 234; 18 Upper Canada C. P. 530. 
 
 N. 
 
 Najac V. Boston etc. R. Co., 7 Allen, 
 
 829. pp. 432, 514, 529. 
 
 c 12 Wall. 85; 109 Mass. 405; 14 Allen, 436; 
 11 Allen, 297. 
 Nashville etc. R. Co. v. Carroll, 6 Heisk. 
 
 347. p. 417. 
 Nashville etc. R. Co. v. Messino, 1 
 
 Sneed, 220. pp. 26, 27, 29, 202. 
 Nashville etc. R. Co. v. Sprayberry, 9 
 
 Heisk. 852; s. c. 1 Cent. L. J. 541. 
 
 pp. 432, 433. 
 National Express Co. v. Drew, 2 Macq. 
 
 H. L. Cas. 103; s. c. 33 Eng. Law & 
 
 Eq. 1 ; 1 Pat. Sc. App. 482. p. 359. 
 Nebraska City v. Campbell, 2 Black, 590. 
 
 p. 551. 
 
 c 32 Iowa, 328; 122 Mass. 370, 380; 58 N. Y. 
 395; 102 Mass. 500; 5 Neb. 452; 26 Iowa, 268; 
 2 Col. 160; 11 Allen, 79; 91 U. S. 551 ; 63 Barb. 
 266. 
 
 Nellis V. New York etc. R. Co., 30 N. 
 
 Y. 505. pp. 341, 342, 343. 
 
 c 15 N. Y. Supreme Ct. 581. 
 Nelson v. Chicago etc. R. Co., 38 Iowa, 
 
 564. p. 552. 
 
 C 27 Vt. 379; 28 Vt. 304, 305. 
 
 Nelson v. Long Island R. Co., 7 Hun, 
 
 140. pp. 30, 43, 71, 340, 376. 
 Nelson v. Vermont etc. R. Co., 26 Vt. 
 
 717. p. 418. 
 Nevins v. Bay State Steamboat Co., 4 
 
 Bosw. 225. pp. 472, 512, 522, 527, 
 
 534. 
 
 C 46 N. H. 219. 
 
 Newberry v. Lee, 3 Hill, 523. p. 554. 
 New Jersey etc. R. Co. v. Kenuard, 21 
 
 Pa. St. 203. pp. 200, 258. 
 
 c 51 111. 339 ; 48 N. H. 315 ; 63 Pa. St. 17. cl 
 64 Pa. St. 229. ? 39 Md 344; 29 Ind.86. o 56 
 Pa. St. 296. 
 
 New Jersey Express Co. v. Nichols, 32 
 N. J. L. 166 ; s. c. 33 N. J. L. 434. p. 
 552. 
 c 39 N. J. L. 192 ; 38 N. J. L. 529 ; 33 Wis. 75 ; 
 
 33 N. J. L. 439. 
 
 New Jersey Steam Nav. Co. v. Mer- 
 chants' Bank, 6 How. 344. pp. 381, 
 
 383, 391, 480. 
 New Orleans etc. R. Co. v. Allbritton, 
 
 38 Miss. 242. pp. 212, 556, 559, 572, 
 
 575. 
 
 e 44 Miss. 490. 
 New Orleans etc. R. Co. v. Bailey, 40 
 
 Miss. 395. pp. 374, 417. 
 New Orleans etc. R. Co. v. Burke, 53 
 
 Miss. 201. pp. 301, 303, 304, 305, 
 
 364. 
 New Orleans etc. R. Co. v. Hurst, 36 
 
 Miss. 660. pp. 65, 66, 369, 544, 545, 
 
 546, 571, 574, 577, 581. 
 New Orleans etc. R. Co. v. Moore, 40 
 
 Miss. 39. pp.511, 536, 537. 
 New Orleans etc. R. Co. v. Statham, 42 
 
 Miss. 607. pp. 66, 226, 227, 270, 271, 
 
 574, 577, 582. 
 
 C 41 Miss. 490, 491, 493 ; 59 Ind. 320 ; 4 Col. 
 348. 
 
 New Orleans Mutual Ins. Co. v. New 
 
 Orleans etc. R. Co., 20 La. An. 302. 
 
 p. 389. 
 New Orleans v. The Windermere, 12 
 
 La. An. 84. p. 474. 
 ISfeio York etc. B. Co. v. Fraloff, 9 Cent. 
 
 L. J. 432 ; s. c. 8 Reporter, 801 ; 20 
 
 Alb. L. J. 409. pp. 486, 510, 528, 530. 
 
 (In full, p. 502.) 
 Newman v. Walters, 3 Bos. & Pul. 612. 
 
 p. 471. 
 
 d 1 Lush. .325. 
 Nicholls V. Great Southern R. Co., Irish 
 
 Rep. 7 C. L. 40; s. c. 21 Week. Rep. 
 
 387. pp. 229, 231, 232, 233, 268. 
 Nichols V. Middlesex R. Co., 106 Mass. 
 
 403. p. 444. 
 Nichols V. Sixth Avenue R. Co., 38 N. 
 
 Y. 131. pp. 268, 444, 563.
 
 xlvi 
 
 TABLE OF CASES CITED. 
 
 Nicholson v. Erie K, Co., 41 N. Y. 525.- 
 
 p. 225. 
 Nicholson v. Lancashire etc. B. Co., 3 
 
 Hurl. & Colt. 534; s. c. 34 L. J. 
 
 (Exch.) 84; 12 L. T. (n. s.) 391. 
 
 pp. 108, 109, 269. (In full, p. 85.) 
 
 c 56 Me. 243. 
 Nicholson v. Willan, 5 East, 507. pp. 
 
 495, 497, 499. 
 Nieto V. Clark, 1 Cliff. 145. pp. 314, 
 
 317, 361, 365, 470. 
 
 c3 ClifF. 427; 106 Mass. 1«9; 36 Wis. 460, 
 463, 672, 675 ; 57 Me. 217. 
 Nimrod (The), 7 Notes of Cas. 559. 
 
 p. 361. 
 Nolan V. New York etc. R. Co., 9 Jones 
 
 & Sp. 541 ; 2 Abb. N. C. 538. pp. 69, 
 
 71, 376. 
 Nolan V. Ohio etc. R. Co., 39 Mo. 114. 
 
 p. 539. 
 Nolton V. Western B. Corp., 15 N. Y. 
 
 444. pp. 45, 545. (In full, p. 37.) 
 
 c 22 N. Y. 307 ; 66 N. Y. 319 ; 51 Pa. St. 326 ; 
 47 Ind. 481 ; 37 Mo. 260 ; 57 Barb. 652 ; 19 Ohio 
 St. 13; 58 N. Y. 134; 24 N. Y. 188, 193 ; 20 Minn. 
 128; 37 Mich. 113, 114; 28 N. J. L. 190. 
 Nordemeyer v. Loescher, 1 Hilt. 499. 
 
 p. 524. 
 North Pennsylvania R. Co. v. HeUe- 
 
 man, 49 Pa. St. 60; s. c. 1 Thomp. 
 
 onNeg. 401. p. 233. 
 
 C 33 Ind. 359; 34 Iowa, 161; 63 Pa. St. 179; 
 17 Mich. 118, 120, 121 ; 21 Minn. 297 ; 35 N. Y. 
 44; 49 Cal. 258; 64 Me. 490; 42 N. Y. 473; 25 
 Mich. 291; 73 Pa. St. 510; 66 Pa. St. 33; 4 Or. 
 55 ; 67 Pa. St. 315. 
 Northern R. Co. v. Page, 22 Barb. 130. 
 
 pp. 336, 375. 
 
 c 28 Barb. 280; 24 Barb. 517; 4 Hun, 219; 6 
 Thomp. & C. 497, 498; 46 N. H. 219. 
 
 Northrup V. Railway Passengers' Assur. 
 
 Co., 43 N. Y. 516. p. 61. 
 North-Western R. Co. v. Hack, 66 111. 
 
 238. pp. 370, 375. 
 Norton v. Ittner, 56 III. 551. p. 563. 
 
 c 58 Mo. 393. 
 Norwich Co. v. Wright, 12 Wall. 104. 
 
 p. 487. 
 Noyes v. Smith, 28 Vt. 59. p. 222. 
 
 c 49 Texas, 189 ; 2 Lans. 512 ; 43 Me. 271 ; 68 
 111. 552; 49 Barb. 327; 14 Minn. 363; 38 Pa. St. 
 Ill; 5 Hun, 33; 46 Mo. 174; 13 AUen, 442; 47 
 Mo. 587; 50 Miss. 191; 10 Ind. 557; 62 Me. 467; 
 
 59 Mo. 504; 22 111. 643; 46 Texas, 539; 43 Me. 
 270; 5 Hun, 494; 8 Hun, 257; 47 Miss. 414, 416; 
 48 Me. 120, 122; 32 Vt. 478; 49 N. Y. 531 ; 42 Ala. 
 714, 718. 
 
 o. 
 
 CBrien v. Boston etc. B. Co., 15 Gray, 
 
 20. pp. 30, 43, 339, 340, 369, 376, 
 
 (In full, p. 22.) 
 
 c 104 Mass. 121 ; 6 Reporter, 490 ; 47 Iowa, 
 89; 10 Ch. Leg. N. 78; 38 Ind. 126. 
 O'Donnell v. Allegheny etc. R. Co., 59 
 
 Pa. St. 239 ; s. c. 50 Pa. St. 490 ; 8 Am. 
 
 L. Reg. (N. 8.) 757; 6 Cent. L. J. 
 
 401. pp. 49, 262, 332, 345. 
 
 c 86 Pa. St. 144; 53 Pa. St. 457; 49 Pa. St. 
 194 ; 68 111. 552, 553 ; 50 Miss. 191 ; 82 Pa. St. 
 124 ; 46 Texas, 539 ; 58 Me. 195. d 64 Mo. 475. 
 O'Flaherty v. Union R. Co., 45 Mo. 70. 
 
 p. 293. 
 O'Hagan v. Dillon, 10 Jones & Sp. 456. 
 
 p. 271. 
 Ohio etc R. Co. v. Applewhite, 52 Ind. 
 
 540. p. 66. 
 
 c 57 Ind. 579; 6 Cent. L. J. 390; 55 Ind. 372; 
 
 60 Ind. 15. 
 
 Ohio etc. R. Co. v. Dickerson, 59 Ind. 
 
 317. pp. 234, 571, 572. 
 Ohio etc. R. Co. v. Dunbar, 20 111. 623. 
 
 p. 418. 
 Ohio etc. R. Co. v. Hatton, 60 Ind. 12; 
 
 s. c. 6 Cent. L. J. 389. pp. 67, 68. 
 
 C 60 Ind. 536. 
 
 Ohio etc. R. Co. v. Muhling, 30 HI. 9. 
 
 pp. 49, 234, 334, 340, 376. 
 
 c 41 Ala. 502; 36 Mo. 434 ; 58 Me. 197. d 81 
 111. 249, 250. 
 
 Ohio etc. R. Co. v. Schiebe, 44 111. 460. 
 
 p. 267. 
 Ohio etc. R. Co. v. Selb}^ 47 Ind. 471. 
 
 pp. 45, 234, 401, 550, 551. 
 
 c 37 Mich. 115. 
 Ohio etc. R. Co. v. Stratton, 78 HI. 88; 
 
 s. c. 3 Cent. L. J. 415. pp. 267, 292. 
 Oil Creek etc. R. Co. v. Clark, 72 Pa. 
 
 St. 231. p. 70. 
 
 « 43 Barb. 537; 1 Biss. 415. 
 Oliver v. New York etc. R. Co., 1 Edm. 
 
 Sel. Cas. 589. pp. 201, 208. 
 Orange County Bank v. Brown, 9 Wend. 
 
 85; s. c. 3 Wend. 158. pp. 491, 498, 
 
 511, 520, 521. 
 
 c 15 Mich. 127, 131, 142; 30 N. Y. 611, 616,
 
 TABLE or CASES CITED. 
 
 xlvii 
 
 617, 621 ; 4 Bosw. 233, 238 ; 25 Wend. 460 ; 69 111. 
 67; 9 Humph. 624; Newb. Adm. 496; 42 Wis. 
 28 ; 9 Ch. Leg. N. 316 ; 1 Smed. & M. 303 ; 23 Vt. 
 216; 3 Barb. 389, 390; 8 Bush, 474; 14 Pa. St. 
 132 ; 2 Bosw. 604 ; 44 N. II. 230, 231 ; 52 N. Y, 
 433; 9 Lower Canada Rep. 78; 11 N. Y. 492. 
 493; 12 Ga. 225; 42 K. Y. 329; 19 Wend. 236, 
 245, 258, 265, 270, 271, 637, 540, 541; 6 Hill, 5S9; 
 13 111. 748, 749 ; 42 Wis. 28 ; 44 N. H. 330, 331 ; 
 98 Mass. 378; 29Ind. 361; 7 Am. L. Reg. (N. s.) 
 635; 6 Blatchf. 66; 11 Humph. 420; 1 E. D. 
 Smith, 98, 99, 100; 6 Cush. 73. d 1 Woolw. 
 370; 45 Barb. 223; 2 Woodb. & M. 314. 
 Oriflamme (The), 3 Sawyer, 397; s. c. 
 
 1 Sawyer, 176. pp. 469, 572. 
 Orndorf v. Adams Express Co., 3 Bush, 
 
 194. p. 889. 
 Osborne v. Union Ferry Co., 53 Barb. 
 
 629. p. 108. 
 Ouimit V. Henshaw, 35 Vt. 605. pp. 
 
 512, 520, 532. 
 
 c 27 Iowa, 27; 57 N. Y. 559; 73 HI. 513; 37 
 N. Y. Superior Gt. 532; 38 Vt. 416. 
 
 Pabst V. Baltimore etc. R. Co., 2 
 
 McArthur, 42. pp. 231, 268. 
 Pacific (The), 1 Blatchf. 569. pp. 29, 
 
 464, 467. 
 Packet Co. v. Clough, 20 Wall. 528. 
 
 pp. 44, 558. 
 
 C 2 Mont. 520, 521. 
 
 Paducah etc. R. Co. v. Hoehl, 12 Bush, 
 
 41. p. 552. 
 Page V. New York etc. R. Co., 6 Duer, 
 
 523. p. 67. 
 Paine v. Chicago etc. R. Co., 45 Iowa, 
 
 569. pp. 571, 575. 
 Palmer v. Andover, 2 Cush. 600. p. 
 
 220. 
 
 cl Allen, 32; 25 Iowa, 110, 111, 112, 114, 
 115; 13 Hun, 85; 3 Allen, 405; 9 Kan. 558; 53 
 Mo. 301; 7 Gray, 102, 103,343; 117 Mass. 710; 
 10 R. I. 308; 41 N. H. 52, 334; 6 Reporter, 719; 
 97 Mass. 265; 22 Wis. 679; 43 Ind. 597; 10 
 Allen, 27; 12 Allen, 261; 44 Barb. 391; 35 111. 
 66; 34 N. H. 188; 51 Me. 140; 35 N. H. 276; 42 
 N. H. 216. ? 29 Wis. 304, 305; 51 Me. 128, 
 130, 132. 
 
 Palmer v. Charlotte etc. R. Co., 3 So. 
 
 Car. 580. p. 70. 
 
 c 47 Iowa, 86; 10 Ch. Leg. N. 78. «l 48 Vt. 
 235. 
 Palmeter v. Wagner, 10 Alb. L. J. 149. 
 
 p. 532. 
 
 Pardee v. Drew, 25 Wend. 459. pp. 7, 
 
 511, 521. 
 
 C3 Barb. 389, 390; 41 Miss. 679; 15 Mich. 
 142; 6 Hun, 547; 2 Bosw. 604; 44 N. H. 330, 
 331 ; 42 X. Y. 329, 332 ; 7 Mete. 601 ; 1 Am. Rail. 
 Cas. 394; 6 Hill, 589; 21 Iowa, 26; 13 111. 749; 
 17 Am. L. Reg. (N. 8.) 511; 72 N. Y. 58; 6 
 Cush. 72; 1 E. D. Smith, 99; 7 Hill, 563; 25 
 Wend. 459; 24 La. An. 573. 
 Park V. O'Brien, 23 Conn. 339. p. 552. 
 
 c45 How. Pr. 89; 17 Mich. 120, 122; 29 
 Conn. 209; 14 Minn. 96; 34 N. Y. 14; 21 Md. 
 294. 
 Parker v. Adams, 12 Mete. 415; s. c. 
 
 1 Thomp. on Neg. 376. p. 551. 
 
 c 19 Conn. 576; 18 N. Y. 252; 7 Wis. 431; 42 
 Me. 336; 21 Iowa, 26; 10 Cush. 496, 497; 24 N. 
 J. L. 284; 37 Cal. 422; 21 Ohio St. 593; 52 N. 
 H. 554 ; 24 Vt. 495 ; 47 Miss. 421 ; 6 Gray, 71, 72; 
 104 Mass. 62; 37 Mo. 552. 
 Parker v. Erie etc. R. Co., 5 Hun, 57. 
 
 pp. 344, 367. 
 Parker v. South-Eastern R. Co., 1 C. 
 
 P. Div. 618; s. c. 2 C. P. Div. 416; 
 
 12 Eng. Law & Eq. 12. p. 519. 
 
 C 10 Jones & Sp. 363. 
 
 Parker v. Union Woollen Co., 42 Conn. 
 
 399. p. 220. 
 Parks V. Ross, 11 How. 372. p. 505. 
 Parmalee v. Fischer, 22 111. 212. p. 510. 
 Parmalee v. Lowitz, 74 111. 116. pp. 
 
 26, 525. 
 Parnaby v. Lancaster Canal Co., 11 
 
 Ad. & E. 223; s. c. 3 Nev. & P. 523; 
 
 3 Per. & Dav. 162 ; 1 Thomp. on Neg. 
 
 541. pp. 153, 224. 
 
 c 122 Mass. 366, 367, 373; L. R. 1 C. P. 287; 
 35 L. J. (C. P.) 189; 11 C. B. (N. 8.) 206; 12 
 Jur. (N. S.) 433, 572, 578; L. R. 1 H. L. 103, 123; 
 11 H. L. Cas. 701, 727 ; .35 L. J. (Exch.) 227, 
 237; 4 Jur. (n. s.) 642; 27 L. J. (Exch.) 324; 
 7 Hurl. & N. 336, 339; 30 L. J. (Exch.) 332; 8 
 Jur. (N. 8.) 491, 492, 991; 59 N. Y. 32; 7 Re- 
 porter, 479 ; 91 U. S. 551 ; 5 C. B. 615 ; 11 Exch. 
 270 ; 4 Hurl. & N. 351 ; 2 Best & S. 117 ; 31 L. J. 
 (Q. B.) 195; 44 L. J. (Q. B.) 90; L. R. 10 Q. B. 
 215; L. R. 4Q. B. 385. 
 
 Parsons v. Bedford, 3 Pet. 446. p. 609. 
 Parsons v. Monteath, 13 Barb. 353. p. 
 
 383. 
 Passenger R. Co. v. Young, 21 Ohio 
 
 St. 508. pp. 369, 374. 
 Paterson v. Wallace, 1 Macq. H. L. 
 
 Cas. 748. p. 562. 
 
 c2 Lans. 516; 28 Ind. 31; 7 Hurl. & N. 938;
 
 xlviii 
 
 TABLE OF CASES CITED. 
 
 12 Ohio St. 488; 17 Wall. 664; 3 Dill. 325; 49 
 Barb. 327, 569; 11 Hun, 594; L. R. 7 C. P. 280; 
 6 Hun, 33 ; 46 Mo. 170 ; 3 Hurl. & N. 655 ; 27 L. 
 J. (Exch.) 406; 67 Me. 107; 50 Miss. 191; 106 
 Mass. 285 ; 62 Me. 467 ; 3 Robt. 84 ; 28 How. Pr. 
 476 ; 36 Pa. St. 304 ; 24 N. Y. 413, 414, 445 ; 8 
 Hun, 258, 259; 5 Kan. 182; 2 Hurl. & N. 732; 
 57 Me. 131; 25 N. Y. 566, 567; 48 Me. 118; 29 
 Conn. 560. 
 Patten v. Chicago etc. R. Co., 32 Wis. 
 
 524. pp. 567, 568. 
 Patterson v. Burlington etc. R. Co., 38 
 
 Iowa, 279. p. 552. 
 
 c 45 Iowa, 663, 664 ; 38 Iowa, 567, 568. 
 Patscheider v. Great Western R. Co., 
 
 26 Week. Rep. 268; s. c. 6 Cent. L. 
 
 J. 275; 5 Reporter, 781; 3 Exch. 
 
 Div. 153; 7 Am. L. Reg. (n. s.) 799, 
 
 pp. 532, 534. 
 Patten v. Chicago etc. R. Co., 32 Wis. 
 
 524. pp. 108, 272. 
 Payne v. Chicago etc. R. Co., 39 Iowa, 
 
 523. p. 294. 
 Pa}ne v. Great Northern R. Co., 2 Post. 
 
 & Fin. 619. p. 206. 
 Pearson v. Duane, 4 Wall. 605; s. c. 6 
 
 Am. L. Reg. (n. s.) 631. pp. 30, 303, 
 
 464, 465, 524, 568. (In full, p. 17.) 
 
 c 18 Int. Rev. Rec. 55; 11 Blatchf. 237. 
 Peck V. Neil, 3 McLean, 22. pp. 238, 
 
 574. 
 
 c i Iowa, 548 ; 27 La. An. 5 ; 5 N. H. 433. 
 Peck V. New York etc. R. Co., 70 N. Y. 
 
 587. pp. 345, 370, 374, 376. 
 Peck V. Weeks, 34 Conu. 145. p. 386. 
 Peek V. North Staffordshire R. Co., 10 
 
 H. L. Cas. 473. p. 390. 
 Peett?. Chicago etc. R. Co., 19 Wis. 118. 
 
 pp. 421,423. 
 Peixotti V. McLaughlin, 1 Strobh. 468. 
 
 pp.26, 520, 521. 
 Pendleton v. Kinsley, 3 Cliff. 416. pp. 
 
 365, 369, 470. (In full, p. 352.) 
 Peninsular etc. Steam Nav. Co. v. 
 
 Shand, 11 Jur. (n. s.) 771; s. c. 
 
 13 Week. Rep. 1079; 12 L. T. (n. s.) 
 
 808. pp. 525, 526. 
 
 c 35 Upper Canada Q. B. 562; 45 N. Y. 117; 
 55 Pa. St. 58; L. R. 2 Ad. & E. 396; L. R. 3 C. 
 P. 18; 26 Upper Canada Q. B. 498. 
 Pennsylvania Canal Co. v. Beutley, 66 
 
 Pa. St. 30. pp. 552, 563. 
 
 c 11 Ind. 254; 67 Me. 107; 41 Iowa, 231; 72 
 
 Pa. St. 141; 48 Cal. 426; 70 Pa. St. 363; 75 Pa. 
 St. 86, 376; 1 Cent. L. J. 374. 
 Pennsylvania R. Co. v. Allen, 53 Pa. 
 
 St. 276. p. 571. 
 Pennsylvania R. Co. v. Books, 57 Pa. 
 
 St. 339. pp. 51, 52, 329, 556, 561, 
 
 571. 
 
 c 59 Ind. 320; 86 Pa. St. 146; 58 Me. 192; 44 
 Iowa, 318. 
 Pennsylvania R. Co. v. Henderson, 51 
 
 Pa. St. 315. pp. 45, 386, 387, 388, 
 
 401. 
 
 c 56 Me. 244; 5 Neb. 121; 47 Ind. 486; 17 
 How. 368, 369, 370; 55 Pa. St. 59; 63 Pa. St. 
 17; 19 Ohio St. 14; 20 Minn. 130; 39 Iowa, 254. 
 d 34 N. J. L. 517. 
 
 Pennsylvania R. Co. v. Kelly, 31 Pa. 
 
 St. 372. p. 293. 
 Pennsylvania R. Co. v. Kilgore, 32 Pa. 
 
 St. 292. pp. 66, 227, 267. 
 
 C 30 Ohio St. 238 ; 40 Miss. 386 ; 63 N. Y. 560; 
 49 N. Y. 53. 
 Pennsylvania R. Co. v. McCloskey's 
 
 Administrator, 23 Pa. St. 526. pp. 
 
 228, 266, 267, 402. 
 
 c 52 Pa. St. 390; 51 Pa. St. 328, 3.31; 6 Am. 
 L. Reg. 716 ; 26 Minn. 129 ; 21 Ind. 52 ; 2 Cent. 
 L. J. 367 ; 39 Iowa, 249, 254. d 33 Pa. St. 329; 
 8 Am. L. Reg. 37. 
 Pennsylvania R. Co. v. McTighe, 46 Pa. 
 
 St. 316. p. 552. 
 
 c 3 Daly, 382 ; 15 Wall. 408. 
 Pennsyljania R. Co. v. Schwarzen- 
 
 berger, 45 Pa St. 208. pp. 437, 525. 
 Pennsylvania R. Co. v. Sly, 65 Pa. St. 
 
 205. p. 543. 
 
 C 29 Gratt. 436. 
 
 Pennsj'lvania R. Co. v. The People, 31 
 
 Ohio St. 537. p. 544. 
 Pennsj'lvania R. Co. v. Vandiver, 42 Pa. 
 
 St. 365. pp. 317, 363, 370, 374, 375. 
 
 c 36 Wis. 464, 675; 11 Nev. 364; 3 Cliff. 429; 
 57 Me. 215. 
 Pennsylvania R. Co. v. Weber, 76 Pa. 
 
 St. 157 ; s. c. 72 Pa. St. 27. p. 552. 
 
 c 5 Reporter, 377; 79 Pa. St. 390. 
 Pennsylvania R. Co. v. Zebe, 33 Pa. St. 
 
 318; s. c. 37 Pa. St. 420; 8 Am. L. 
 
 Reg. 27. pp. 233, 269, 293. 
 
 e 28 Mich. 455 ; 56 Pa. St. 297 : 39 Md. 348 ; 53 
 Pa. St. 4.'J7, 459; 100 Mass. 215; 29 Iowa, 38; 44 
 Pa. St. 178; 13 Ind 371; 35 Pa. St. 71, 72, 73; 36 
 Pa. St. 303; 21 Wis. 375; 24 Md. 107; 37 Mich. 
 215.
 
 TABLE or CASES CITED. 
 
 xlix 
 
 Penton v. Grand Trunk R. Co., 28 Up- 
 per Canada Q. B. 367. pp. 532, 534, 
 536. 
 People V. Caryl, 3 Park. Or. Cas. 326. 
 
 pp. 303, 336, 375, 465. 
 People V. Easton, 13 Abb. Pr. (n. s.) 
 
 160. p. 349. 
 People V. Jillson, 3 Park. Cr. Cas. 234. 
 pp. 30, 43, 341, 376. 
 C 7 Hun, 144. 
 People V. Wilson, 17 111. 137. p. 323. 
 Peoria etc. R. Co. v. Thompson, 56 Dl. 
 
 138. p. 215. 
 Percy v. Millaudon, 8 Mart. (n. s.) 75. 
 
 p. 179. 
 Perkins v. Concord R. Co., 44 N. H. 
 223. pp. 557, 559. 
 C 48 N. H. 545. 
 Perkins v. Eastern etc. R. Co., 29 Me. 
 
 307. p. 552. 
 Perkins v. Missouri etc. R. Co., 55 
 Mo. 202. p. 575. 
 
 c 66 Mo. 545, 595; 2 Cent. L. J. 540; 59 Wis. 
 33. 
 
 Perkins v. New York etc. R. Co., 24 
 
 N. Y. 196 ; s. c. 2 Am. L. Reg. (N. S.) 
 
 318. pp. 383, 400, 402. 
 
 C 51 Pa. St. 326; 25 N. Y. 444, 446, 453, 455; 
 
 32 N. J. L. 413 ; 34 N. J. L. 516 ; 17 How. 364 ; 3 
 
 Lans. 108; 21 Ind. 51, 52; 37 Mich. 114; 2 Cent. 
 
 L. J. 367. ? 37 111. 507 ; 51 Pa. St. 328 ; 47 Ind. 
 
 485; 20 Minn. 128, 129. 
 
 Perkins v. Wright, 37 Ind. 27. pp. 520, 
 
 521, 537. 
 Peter's Case, 9 Am. L. Rev. 164. pp. 
 
 347, 348. 
 Peters v. Rylands, 20 Pa. St. 497. pp. 
 
 412, 413. 
 Petty V. Great Western R. Co., L. R. 5 
 C. P. 461, note. pp. 231, 268. 
 c 40 L. J. (Q. B.) 191, 201 ; L. It. 6 Q. B. 383, 
 402. 
 
 Phelps V. London etc. R. Co., 19 C. B. 
 
 (N. 8.) 321; s. C. 11 Jur. (n. S.) 652; 
 
 34 L. J. (C. P.) 259; 13 Week. Rep. 
 
 782; 12 L. T. (n. s.) 496. pp. 506, 
 
 611, 512. 
 
 c L. R. 6 Q. B. 619; 40 L. J. (Q. B.) 303; 32 
 Wis. 99; 56 Me. 61; 8 Am. L. Keg. (N. 8.) 399. 
 Philadelphia etc. B. Co. v. Derby, 14 
 
 How. 468. pp. 44, 104, 177, 197, 201, 
 
 224, 316, 317, 359, 363, 373, 374, 391, 
 
 398, 399, 440, 480, 524. (In full, p. 
 31.) 
 
 c 47 Ind. 485, 487 ; 30 111. 24 ; 41 Ala. 502 ; 44 
 Miss. 492; 33 Wis. 54; 56 Me. 241; 3 Cliff. 424, 
 425; 17 How. 383; 17 Wall. 374; 16 How. 474; 
 25 N. T. 457; 34 N. T. 516; 51 Pa. St. 325; 36 
 Wis. 462, 463, 675; 106 Mass. 188; 11 Nev. 364; 
 2 Am. L. T. 119; 34 Barb. 358; 104 Mass. 120; 
 7 Bosw. 136 ; 37 Mo. 260, 546 ; 44 Ind. 202. 203 ; 
 48 N. H. 314; 58 N. Y. 134; 19 Ohio St. 13; 36 
 Mo. 434; 26 Barb. 645; 6 Am. L. Reg. 715; 24 
 N. Y. 193; 3 Allen, 21; 5 Duer, 196, 197; 15 
 Alh. L. J. 62; 20 Minn. 128, 130, 133; 49 Me 
 281; 15 ni. 469; 38 Ind. 126; Chase's Dec. 153; 
 57 Me. 216; 5 Ind. 342; 37 Mich. 115; 11 Gratt. 
 712; 57 N. Y. 395; 41 Mo. 508; 39 Iowa, 249, 
 253; 2 Ben. 552; 4 Ben. 355 
 Philadelphia etc. R. Co. v. Hassard, 75 
 
 Pa. St. 367. pp. 268, 445. 
 Philadelphia etc. R. Co. v. Long, 75 Pa. 
 
 St. 257. p. 293. 
 Philadelphia etc. R. Co. v. Quigley, 21 
 
 How. 210. pp. 358, 573. 
 Philadelphia etc. R. Co. v. Spearen, 47 
 Pa. St. 300. p. 562. 
 c 3 Daly, 385; 33 Ind. 359; 18 Ohio St. 414; 
 39 Md. 580 ; 65 Pa. St. 273, 274, 276 ; 2 Neb. 340 ; 
 82 Pa. St. 141; 37 Mo. 294; 69 Pa. St. 215; 33 
 Iowa, 568. 
 Phillips V. Earle, 8 Pick. 182. pp. 498, 
 
 528. 
 Phillips V. Rensselaer etc. R. Co., 57 
 Barb. 644; s. c. 49 N. Y. 177. pp. 
 106, 226, 267, 268. 
 d 3 N. Y. S. C. (T. & C.) 687. 
 Pier V. Finch, 24 Barb. 514. pp. 65, 71. 
 
 c 5 Neb. 125 ; 7 Hun, 673. 
 Pickford v. Grand Junction R. Co., 8 
 
 Mee. & W. 372. p. 7. 
 Pike V. Chicago etc. R. Co., 40 Wis. 
 
 583. p. 519. 
 Pikei;. Polytechnic Institution, 1 Post. 
 & Fin. 712. p. 153. 
 c L. R. 5 Q. B. 189; L. R. 4 Q. B. 385. 
 Pillow V. Bushnell, 5 Barb. 156. p. 
 
 486. 
 Pittsburgh etc. R. Co. v. Andrews, 39 
 
 Md. 329. pp. 257, 562, 565, 571. 
 Pittsburgh etc. R. Co. v. Bingham, 29 
 Ohio St. 364; s. c. 16 Am. L. Reg. 
 (N. s.) 637. p. 106. 
 Pittsburgh etc. B. Co. v. Brigham, 29 
 Ohio St. 374. p. 105. (In full, p. 
 101. 
 
 d
 
 TABLE OF CASES CITED. 
 
 Pittsburgh etc. R. Co. v. Caldwell, 74 
 
 Pa. St. 421 . pp. 44, 291 , 293, 345, 445. 
 
 o 75 Pa. St. 376; 21 Minn. 214. 
 Pittsburgh etc. R. Co, v. Evans, 53 Pa. 
 
 St. 250. p. 562. 
 
 c 46 Ind. 48; 4 Or. 55; 38 Ind. 306. 
 Pittsburgh etc. R. Co. v. Hennigh, 39 
 
 Ind. 509. pp. 336, 375. 
 
 C 48 Vt. 235. 
 Pittsburgh etc. R. Co. v. Hinds, 53 Pa. 
 
 St. 512. pp. 303, 304, 315, 317, 345, 
 
 362, 364. (In full, p. 295.) 
 
 c 106 Mass. 189; 53 ISIiss. 220; 36 Wis. 460, 
 461,463; 3 Cliflf. 428; 3 So. Car. 598; 55 N. Y. 
 113; ^7 Mass. 369; 76 Pa. St. 514; 5 Hun, 526; 
 36 Wis. 673,675; 57 Me. 216; 7 Reporter, 461. 
 Pittsburgh etc. R. Co. v. Krouse, 30 
 
 Ohio St. 222. pp. 51, 267. 
 Pittsburgh etc. R. Co. v. McClurg, 56 
 
 Pa. St. 294. pp. 257, 270. 
 
 c 16 Am. L. Reg. 666 ; 121 Mass. 428 ; 5 Bush, 
 5 ; 1 Cent. L. J. 374 ; 75 Pa. St. 376 ; 39 Md. 347 ; 
 29 Ind. 86; 52 Mo. 259; 64 Pa. St. 229; 63 Pa. 
 St. 17. ? 51 111. 340. 
 Pittsburgh etc. R. Co. v. Nuzum, 50 
 
 Ind. 141 ; s. c. 2 Cent. L. J. 829. p. 
 
 66. 
 
 o 52 Ind. 546; 54 Ind. 579; 6 Cent. L. J. 390; 
 55 Ind. 372 ; 60 Ind. 534. 
 Pittsburgh etc. R. Co. v. Pillow, 76 Pa. 
 
 St. 510; s. c. 2 Cent. L. J. 79, pp. 
 
 29, 303, 364, 556. 
 Pittsburgh etc. R. Co. v. Slusser, 19 
 
 Ohio St. 157. pp. 369, 575. 
 
 c 19 Ohio St. 170, 172; 11 Nev. 364 ; 45 Iowa, 
 572. 
 
 Pittsburgh etc. R. Co. v. Theobold, 51 
 
 Ind. 246. pp. 369, 549, 559. 
 Pittsburgh etc. R. Co. v. Thompson, 
 
 56 111. 138; s. c. 4 Ch. Leg. N. 9. 
 
 pp. 206, 211, 212, 572, 582. 
 
 C 29 Gratt. 446; 15 Alb. L. J. 62; 4 Qol. 10. 
 
 Pittsburgh etc. R. Co. v. Valleley, 32 
 Ohio St. 345; s. c. 7 Reporter, 406; 
 6 Cent. L. J. 277. pp. 301, 302, 375, 
 
 Pittsburgh etc. R. Co. v. Vandyne, 57 
 Ind. 576. pp. 29, 303, 375. 
 
 Pittsburgh etc. R. Co. v. Van Houten, 
 48 Ind. 90. pp. 301, 375. 
 c 57 Ind. 579. 
 
 Pittsburgh etc. R. Co. v. Vining's Ad- 
 ministrator, 27 Ind. 513. p. 552. 
 c IS Ohio St. 413; 34 Iowa, 160; 46 Ind. 30; | 
 
 52 Ind. Ill ; 40 Ind. 552 ; 28 Ind. 288 ; 59 Ind. 92. 
 
 Place V. The City of Norwich, 1 Ben. 
 
 89. p. 4S7. 
 Plaster v. Illinois etc. R. Co., 35 Iowa, 
 
 449. p. 552. 
 Piatt V. Forty-second Street etc. R. 
 
 Co., 4 Thomp. &C. 406. pp. 51, 446. 
 Pleasants v. Fant, 22 Wall. 121, pp. 
 
 252, 505. 
 Pleasants v. North Beach etc. R. Co., 
 
 34 Cal. 586. pp. 28, 580, 
 Pluckwell V. Wilson, 5 Car. & P. 375. 
 
 p. 275, 
 
 c 13 III. 590; 19 Conn. 511, 572; 3 Cush. 544; 
 6 Hill, 593; 18 N. Y. 258; 17 Barb. 98; 20 111. 
 491; 2 Woodb. & M. 345; 25 Me. 48; 17 Iowa, 
 463 ; 32 Me. 50; 29 N. J. L. 270, 283 ; 4 N. Y. 360; 
 12 Mete. 420 ; 9 Wis. 217 ; 8 Barb. 395 ; 2 Bradw.' 
 39; 29 Me. 310; 19 Wend. 401; 13 Barb. 497. 
 Plummer v. Webb, 1 Ware, 75. p. 544. 
 Pollard V. New York etc. R. Co., 7 
 
 Bosw. 437. p. 263. 
 Pomeroy v. New York etc. R. Co., 4 
 
 Blatchf. 122. p. 543. 
 Pope V. Nickerson, 3 Story, 475, p. 
 
 176. 
 Porter v. Chicago etc. R. Co., 41 Iowa, 
 
 358. p. 371, 
 Porter v. Hildebrand, 14 Pa, St, 129. 
 
 pp. 513, 538, 
 
 c 35 Vt. 622; 10 How. Pr. 333; 13 III. 750. 
 Porter v. New York etc. R. Co., 34 
 
 Barb. 353. pp. 341, 342, 376. 
 
 e 15 N. Y. S. C. (T. & C.) 581. 
 Porter v. Steamboat New England, 17 
 
 Mo. 290. pp. 66, 68, 466, 568, 570. 
 Potter V. Chicago etc. R. Co., 22 Wis. 
 
 615; s. c. 21 Wis. 372. p. 552. 
 Poucher v. New York etc. R. Co., 49 
 
 N. Y. 263. pp. 385, 401, 402. 
 
 c 66 N. Y. 317 ; 17 How. 367. ? 47 Ind. 485. 
 Poulin V. Broadway etc. R. Co., 1 Abb. 
 
 N. C. 549; s. c. 61 N. Y, 621 ; 2 Jones 
 
 & Sp, 296, p, 443, 
 Poulton V. London etc, R. Co., 36 L. J. 
 
 (Q. B.) 294; s. c. L. R. 2 Q. B, 534. 
 
 p, 373, 
 
 c 9 Ohio St. 131 ; L. R. 6 Q. B. 70; 46 N. Y. 
 29 ; Irish Rep. 5 C. L. 9, 18, 24. d 42 L. J, (Q. 
 B.) 25,27; L. R. 8 Q. B. 40. 
 Powell V. Devenv, 3 Cush. 300. p. 220. 
 
 c59 111. 354; 111 Mass. 141; 39 N. J. L 310;
 
 TABLE OF CASES CITED. 
 
 26 Wis. 280; 4 Gray, 407, 410; 14 Allen, 297; 75 
 
 111. 98. 
 
 Powell V. Layton, 5 Bos. & Pul. 365. 
 
 p. 542. 
 
 c 2 Chit. Rep. 3, 4; 6 Mau. & Sel. 389, 391; 
 34 L. J. (C. P.) 296; 3 Wend. 166. 
 Powell V. Myers, 26 Wend. 591. pp. 
 
 521, 526. 
 Powell V. Pennsylvania R. Co., 32 Pa. 
 
 St. 414. p. 386. 
 Powell V. Pittsburgh etc. R. Co., 25 
 
 Ohio St. 70. pp. 69, 71, 376. 
 Powles V. Hider, 3 El. & Bl. 207; s. c. 
 
 2 Jur. (N. s.) 472; 25 L. J. (Q. B.) 
 
 331. p. 520. 
 Pralger v. Bristol etc. R. Co., 23 L. T. 
 
 (N.s.) 366; s. c. 24 L. T. (n. 8.) 105. 
 
 pp. 231, 268. 
 
 C Irish Rep. 7 C. L. 45; 2 Q. B. Div. 88; L. 
 R. 7 C. P. 323, 326; 41 L. J. (C. P.) 141. 
 Prendergast v. Compton, 8 Car. & P. 
 
 454. pp. 20, 365, 469. 
 
 c 4 WaU. 615. 
 Prideaux v. Mineral Point, 43 Wis. 513 ; 
 
 s. c. 6 Cent. L. J. 430. pp. 294, 552. 
 
 C 43 Wis. 675. 
 Prentiss v. Boston, 112 Mass. 43. p. 
 
 551. 
 
 c 120 Mass. 266. 
 Priest V. Hudson etc. R. Co., 40 How. 
 
 Pr. 456. p. 368. 
 Proctor V. Jennings, 6 Nev. 83. p. 220. 
 Pullman etc. Co. v. Reed, 75 HI. 125. 
 
 pp. 338, 376, 575, 577. 
 
 C 37 Mich. 346. 
 Pullman etc. Co. v. Smith, 73 HI. 360; 
 
 s. c. 5 Cent. L. J. 54 ; 15 Am. L. Reg. 
 
 (N.s.)95; 7Ch. Leg. N. 237. p. 531. 
 
 C 118 Mass. 277. 
 Puterbaugh v. Reasor, 8 Ohio St. 484. 
 
 p. 284. 
 Putnam v. Broadway etc. R. Co., 55 N. 
 
 Y. 108. pp. 303, 304, 364. 
 
 c 66 N. Y. 644; 70 N. Y. 589; 68 N. Y. 310; 
 17 Am. L. Reg. (N. s.) 512; 5 Hun, 526; 72 N. 
 Y. 59; 6 Reporter, .55 ; 7 Reporter, 461 ; 9 Hun, 
 173. 
 Putnam v. Wood, 3 Mass. 481. pp. 115, 
 
 357. 
 Pym V. Great Northern R, Co., 2 Post. 
 
 & Fin. 619. pp. 139, 199. 
 
 c 5 Pa. St. 324 ; 8 P.est & S. .393; 36 L. J. CQ- 
 B.) 190; Irish Rep. 6 C. L. 255. 
 
 Q. 
 
 Quarman v. Burnett, 6 Mee. & W. 599. 
 
 p. 285. 
 Quigley v. Central Pacific R. Co., 11 
 
 Nev. 350. pp. 364, 369, 571, 575, 576, 
 
 678. 
 Quimby v. Vanderhilt, 17 N. Y. 306. pp. 
 
 65,432,437. (In full, p. 423.) 
 
 c 45 N. Y. 189 ; 7 Lans. 64, 65 ; 56 Me. 240 ; 7 
 Hun, 142; 4 Bosw. 234; 12 Wall. 85; 29 Barb. 
 56; 4 Abb. App. Dec. 524; 28 N. Y. 217; 46 N. 
 H. 219 ; 52 N. H. 599 ; 54 N. Y. 515 ; 31 N. T. 666, 
 669, 672. 
 
 R. 
 
 R. E. Lee (The), 2 Abb. C. C. 49. p. 
 
 518, 
 Bailroad Go. v. Aspell, 23 Pa. St. 147. 
 
 pp. 227, 228, 267. (In full, p. 252.) 
 
 c 44 Miss. 485, 487; 52 Pa. St. 390; 64 Pa. St. 
 230 ; 24 Ga. 306 ; 9 La. An. 442 ; 48 N. H. 315. 
 a 32 Pa. St. 296; 49 N. Y. 53. 
 Railroad Co. v. Barron, 5 Wall. 90. p. 
 
 550. 
 
 o 9 Cent. L. J. 132 ; 38 Wis. 625 ; 53 Ind. 
 157; 22 Wis. 617; 13 Hun, 75; 6 Nev. 234. 
 Railroad Co. v. Brown, 18 Wall. 446. 
 
 p. 349. 
 
 C 13 HuYi, 75. 
 
 Railroad Co. v. Gladmon, 15 Wall. 401. 
 
 p. 553. 
 
 c 71111 607; 3 Dill. 325; 21 Minn. 297; 115 
 Mass. 200; 3 Col. 129; 15 Alb. L. J. 63; 39 Md. 
 576; 53 Ala. 80; 14 Kan. 51; 3 Sawyer, 446; 74 
 N. C. 660; 17 Wall. 660; 46 Iowa, 233; 56 Ind. 
 529; 2 Col. 154; 7 Cent. L. J. 313; 5 Reporter, 
 708; 60 N. Y. 335. 
 Ralroad Co. v. Harris, 12 Wall. 85. p. 
 
 643. 
 
 c 29 Gratt. 435. 
 Railroad Co. v. Houston, 95 U. S. 697 ; 
 
 s. c. 6 Cent. L. J. 132. p. 233. 
 Railroad Go. v. Jones, 95 U. S. 655. p. 
 
 265. (In full, p. 248.) 
 Railroad Co. v. Mitchell, 11 Heisk. 400. 
 
 pp. 212, 214. 
 Railroad Go. v. Lockwood, 17 Wall. 357 ; 
 
 s. c. 13 Am. L. Reg. (n. s.) 326; 6 
 
 Ch. Leg. N. 77. pp. 45, 400, 401. 484. 
 
 (In full, p. 378.) 
 
 c 47 Ind. 484, 487, 493; 5 Neb. 122; 15 Alb. 
 L. J. 62; 95 U. S. 6,58; 43 Conn. 340; 20 Minn. 
 131; 10 Ch. Leg. N. 380; 4 Cent. L. J. 37; 93 U
 
 lii 
 
 TABLE OF CASES CITED. 
 
 S. 181, 183; 14 Am. L. Reg. 34; 15 Alb. L. J. 
 
 190 ; 28 Ohio St. 441. 
 
 Railroad Co. v. Pollard, 22 Wall. 348 ; 
 
 s. c. 15 Am. L. Reg. (n. s.) 190. pp. 
 
 211, 212, 263. 
 
 c 2 Mont. 523. 
 Railroad Co. v. Stout, 17 Wall. 657. p. 
 
 563. 
 Railway Co. v. Stevens, 95 U. S. 655. 
 
 pp. 45, 399, 400,401. 
 Railway Co. v. Whitton, 12 Wall. 270. 
 
 p. 544. 
 Ralston v. Str. State Rights, Crabbe, 
 
 46. p. 362. 
 Rarasden v. Boston etc. R. Co., 104 
 
 Mass. 107. pp. 366, 374, 440. 
 
 c 36 Wis. 675; 47 N. Y. 277; 38 Ind. 125. 
 Ransom v. New York etc. R. Co., 15 N. 
 
 Y. 415. pp. 194, 196, 571. 
 
 c 48 N. H. 545; 63 Barb. 267; 2 Ben. 239; 
 28 N. Y. 225 ; 18 N. Y. 542, 545 ; 48 N. Y. 211 ; 42 
 Miss. 629 ; 6 Nev. 238. ? 6 Nev. 235. 
 Rathel v. Brady, 44 Ind. 412. p. 558. 
 Raucli V. Lloyd, 31 Pa. St. 358. p. 293. 
 Rawson v. Pennsylvania R. Co., 2 Abb. 
 
 Pr. (N. s.) 220; s. c. 48 N. Y. 212. 
 
 pp. 65, 526, 527, 538, 547. 
 
 7 Hun, 142; 7 Ben. 451; 52 N. H. 599; 54 
 N. Y. 515. 
 
 Bedhead v. Midland B. Co., 8 Best & S. 
 
 371; s. c. 2 Q. B. 412; 36 L. J. (Q. 
 
 B.) 181 ; 15 Week. Rep. 831 ; 16 L. 
 
 T. (N. S.) 485; L. R. 4 Q. B. 379. 
 
 pp. 199, 208, 357. (In full, p. 124.) 
 
 c 119 Mass. 413; 3 Cliff. 422; 44 N. Y. 481; 
 64 Pa. St. 229 ; 97 Mass. 368 ; 58 N. Y. 139 ; L. 
 R. 8 Exch. 146; 42 L. J. (Exch.) 97; L. R. 5 Q. 
 B. 192, 193, 194, .503, 504, 507, 513; L. R. 5 C. P. 
 443; 52 N. H. 600. 
 
 Reed v. New York etc. R. Co., 45 N. Y. 
 
 574. p. 560. 
 Reedie v. London etc. R. Co., 4 Exch. 
 
 244. p. 285. 
 Regina v. Faneuf , 5 Lower Canada Jur. 
 
 167. p. 376. 
 Regina v. Frere, 4 El. & Bl. 598; s. c. 
 
 1 Jur. (N. 9.) 700; 24 L. J. (M. C.) 
 68. p. 337. 
 
 c Irish Rep. 3 C. L. 526. 
 
 Relff V. Kapp, 3 Watts & S. 21. p. 523. 
 
 Revenge (Tlie), 8 Wash. 2(i7. p. 362. 
 
 Rex V. Robinson, 2 Burr. 803. p. 482. 
 
 Reynolds v. Hindman, 32 Iowa, 146. 
 
 p. 552. 
 
 c 38 Iowa, 122, 123, 280, 297; 34 Iowa, 157, 
 279; 37 Iowa, 322. 
 
 Rice V. Nickerson, 9 Allen, 478. p. 547. 
 Richards v. London etc. R. Co., 7 C. 
 
 B. 839; s. c. 6 Eng. Rail. Cas. 49; 13 
 
 Jur. 986; 18 L. J. (C. P.) 251; 3 
 
 Am. L. Reg. 694. pp. 518, 532. 
 
 c 3 C. P. Div. 226; 18 Alb. L. J. 33; 3 Exch. 
 Div. 156; 19 Wis. 42; 35 Vt. 620; 41 Ala. 504; 
 15 Mich. 135; L. R. 6 C. P. 50; 40 L. J. (C. P.) 
 12; 1 Exch. Div. 222; 16 0. B. 22, 23; 24 L. J. 
 (C. P.) 139, 140; 1 Jur. (N. S.) 423,429; 3 Am. 
 L. Reg. 696, 697; L. R. 6 C. P. 50. «l 15 Mich. 
 145; 27 L. J. (C. P.) 310; 23 Upper Canada Q. 
 B. 380; 10 Jur. (N. S.) 806; 3 Hurl. & Comi38, 
 139; 33 L. J. (Exch.) 201. 
 Richards v. Westcott, 2 Bosw. 589. 
 
 pp. 26, 511, 525, 544, 555. 
 Richardson v. Boston, 19 How. 259. 
 
 p. 505. 
 Richardson v. Great Eastern R. Co., L. 
 
 R. 10 C. P. 490; s. c. 33 L. T. (sr. s.) 
 
 248. pp. 206, 207, 217, 218. 
 Richardson v. Great Eastern R. Co., 
 
 1 C. P. Div. 342. p. 208. 
 Richardson v. Metropolitan R. Co., 37 
 
 L. J. (C. P.) 300. p. 264. 
 
 c L. R. 4 C. P. 621. 
 Riest V. Goshen, 42 Ind. 339. p. 552. 
 Rigby V. Hewitt, 5 Exch. 240; s. c. 19 
 
 L.J. (Exch.) 291. p. 285. 
 
 c39 Md. 143; 18 Ohio St. 410; 59 111. 351, 
 352; 14 Allen, 298; 20 Iowa, 224; 51 Me. 441, 
 442; 46 Pa. St. 161. ? 4 Am. L. Reg. (N. s.) 18. 
 Rigg V. Manchester etc. R. Co., 12 
 
 Jur. (N. s.) 525; 14 Week. Rep. 834. 
 
 p. 105. 
 Riley v. Home, 5 Bing. 217. pp. 128, 
 
 132, 137, 493, 494. 
 Ripley v. New Jersey etc. Transp. Co., 
 
 31 N. J. L. 388. pp. 69, 336. 
 
 c 7 Phila. 14. 
 Robbins v. Jones, 15 C. B. (n. s.) 221 ; 
 
 s. c. 23 L. J. (C. P.) 1 ; 12 Week. Rep. 
 
 248; 9L. T. (n. s.) 523. p. 82. 
 
 C L. R. 2 O. P. 375 ; 36 L. J. (C. P.) 193 ; L. R. 
 1 C. P. 55. 
 
 Roberts v. Boston, 5 Cush. 198. p. 
 
 349. 
 Roberts v. Graham, 6 Wall. 578. pp. 
 
 550, 554.
 
 TABLE OF CASES CITED. 
 
 liii 
 
 Eoberts v. Johnson, 58 N. Y. 614. pp. 
 
 211, 227. 
 Robertson v. New York etc. R. Co., 22 
 
 Barb. 91. pp.265, 329, 556. 
 
 c 64 Mo. 474; 8 Kan. 517; 5 Ch. Leg. N. 83; 
 57 N. Y. 390, 396. 
 
 Robinson v. Dunmore, 2 Bos. & Pul. 
 
 417. pp. 451, 452, 491, 516. 
 Robinson v. Fitchburg etc. R. Co., 7 
 
 Gray, 92. p. 551. 
 
 cl Allen, 189, 190; 109 Mass. 127; 38 Ind. 
 314, 315; 46 N. H. 26; 2 Mont. 520; 44 N. H. 
 333. 
 Robinson v. New York etc. R. Co., 66 
 
 N. Y. 11 ; s. c. 65 Barb. 146. pp. 294, 
 
 553. 
 Rob;.. )U V. Pioche, 5 Cal. 460. p. 271. 
 Robinson v. Western Pacific R. Co., 48 
 
 Cal. 409. p. 552. 
 
 c 50 Cal. 484. 
 Robson V. North-Eastem R. Co., L. R. 
 
 10 Q. B. 271; 44 L. J. (Q. B.) 112; 
 
 23 Week. Rep. 791 ; 32 L. T. (n. s.) 
 
 551 ; 2 Q. B. Div. 85. pp. 229, 232, 
 
 233, 268. 
 
 c 3 App. Cas. 209; 2 Exch. Div. 252. 
 Roe V. Birkenliead etc. R. Co., 7 Exch. 
 
 36; s. c. 20 L. J. (Exch.) 1; 21 L. J. 
 
 (Exch.) 9; 7 Eng. Law & Eq. 246; 6 
 
 Eug. Rail. Cas. 795. p. 373. 
 
 c 57 Me. 246; 30 L. J. (Exch.) 191, 192; 6 
 Hurl. & N. 365; 15 Upper Canada C. P. 439; 
 Irish Rep. 1 C. L. 146; 30 L. J. (Q. B.) 151, 152; 
 3 El. & El. 679, 683. 
 
 Rose V. Des Moines Valley R. Co., 39 
 
 Iowa, 246. pp. 44, 399. 
 Ross V. Hill, 2 C. B. 877; s. c. 3 Dow. 
 
 & L. 788; 10 Jur. 435; 15 L. J. (C. 
 
 P ) 182. pp. 406, 451, 550. 
 Ross V. Missouri etc. R. Co., 4 Mo. 
 . App. 582. pp. 511, 534. 
 Roth V. Buffalo etc. R. Co., 34 N. Y. 
 
 348. pp. 534, 535. 
 
 «• 27 Iowa, 27; 8 Bush, 187; 45 N. T. 187; 49 
 Barb. 154; 73 III. 513, 615; 18 Minn. 143; .50 
 Barb. 205 ; 56 Barb. 191; 37 N. Y. Superior Ct. 
 .532; 31 Ind. 23; 44 N. Y. 511. d 57 N. Y. 599. 
 
 Rounds V. Delaware etc. R. Co., 04 
 
 N. Y. 129; s. c. 3 Hun, 329; 5 N. Y. 
 
 S. C. (T. & C.) 475. pp. 367, 368, 
 
 .374, 375. 
 
 r 70 X. Y. 591 ; 13 Hun, 74 ; 18 Alb. L. J. 91 ; 
 6 Reporter, 404; 12 Hun, 438, 468. 
 
 Ruckers (The), 4 Rob. 73. p. 400. 
 Rumsey v. North-Eastern R. Co., 14 
 
 C. B. (N. s.) 641 ; s. c. 32 L. J. (C. P.) 
 
 244; 14 Week. Rep. 911 ; 8 L. T. (N. 
 
 S.) 666 ; 10 Jur. (n. s.) 208. pp. 524, 
 
 529. 
 
 c 15 Upper Canada 0. P. 436. 
 Rusch V. Davenport, 6 Iowa, 443. p. 
 
 552. 
 
 c 16 Iowa, 346; 32 Iowa, 327; 17 Mich. 118; 
 
 29 Iowa, 47 ; 44 Iowa, 675 ; 21 Iowa, 414 ; 38 
 Iowa, 567; 26 Iowa, 268; 4 Or. 55; 54 Miss. 
 395 ; 9 Iowa, 203. 
 
 Russell V. Hudson River R. Co., 17 
 
 N. Y. 134. p. 48. 
 
 C IS N. Y. 433; 53 Pa. St. 457; 12 Ohio St. 
 495 ; 49 Barb. 326 ; 14 Minn. 364 ; 38 Pa. St. Ill ; 
 10 Allen, 238; 11 Kan. 93; 6 Reporter, 126; 46 
 Texas, 539 ; 76 lU. 398 ; 16 N. Y. 165, 167 ; 5 Neb. 
 497; 18 Ind. 230; 25 N. Y. 565, 567; 44 Cal. 82; 
 
 30 Barb. 235; 86 Pa. St. 440; 8 Kan. 517. 
 Ryall V. Kennedy, 8 Jones & Sp. 847. 
 
 p. 544. 
 Ryan v. Cumberland etc. R. Co., 23 Pa. 
 
 St. 384. p. 47. 
 
 c 63 Pa. St. 151 ; 53 Ga. 16 ; 53 Pa. St. 457 ; 38 
 Pa. St. 110; 21 111. 26; 3 Sawyer, 441; 6 Re- 
 porter, 126; 49 Miss. 283; 20 Md. 221, 222; 59 
 Pa. St. 246, 247 ; 28 Ind. 377 ; 46 Texas, 539, 550 ; 
 27 Md. 601; 76 111. 397; 32 Md. 418; 44 Cal. 82; 
 42 Ala. 719; 86 Pa. St. 440. 
 Ryan v. Hudson etc. R. Co., 1 Jones & 
 
 Sp. 137. p. 553. 
 Ryland v. Peters, 5 Phila. 264. p. 291. 
 
 S. 
 
 Sabin v. Vermont etc. R. Co., 25 Vt. 
 
 363. p. 545. 
 Safford v. Drew, 3 Duer, 627. p. 549. 
 
 C 29 Gratt. 439 ; 26 111. 403. 
 Sager v. Portsmouth, 31 Me. 228. p. 
 
 388. 
 Sales V. Western Stage Co., 4 Iowa, 547. 
 
 p. 200. 
 Saltonstall v. Stockton, Taney's Dec. 
 
 11; s.c. 13 Pet. 187. pp. 28, 544, 562. 
 Sampson v. Coy, 15 Mass. 493. p. 550. 
 Sanford v. Catawissa etc. R. Co., 2 
 
 Phila. 107. p. 28. 
 Sanford v. Eighth Avenue etc. R. Co., 
 
 23 N. Y. 343; s. c. 7 Bo.sw. 122. pp. 
 
 302, 307, 374, 443. 
 
 C 3 Clilf. 428; 64 N. Y. 138; 6 Daly, 223, 224;
 
 liv 
 
 Table of cases cued. 
 
 3 Jones & Sp. 128 ; 46 N. Y. 2S ; 66 N. Y. 457 ; 4 
 Hun, 6S4 ; 46 X. H. 223. ? 36 Wis. 576. 
 Satterlee v. Groat, 1 Wend. 272. p. 452. 
 Sauvinet v. Walker, 27 La. An. 14. p. 
 
 347. 
 Sawyer v. Burlington etc. K. Co., 27 Vt. 
 
 377. pp. 101,417. 
 Sawj'er v. Dulany, 30 Texas, 479. p. 
 
 544. 
 Sawyer v. Hannibal etc. R. Co., 37 Mo. 
 
 240, pp. 199, 208, 210, 211, 582. 
 Sawyer v. Saner, 10 Kan. 466. p. 239. 
 Schechardt v. Aliens, 1 Wall. 369. p. 
 
 505. 
 School District v. Boston etc. R. Co., 
 
 102 Mass. 552. p. 388. 
 Schopman v. Boston etc. R. Co., 9 Cush. 
 24. pp. 417, 434. 
 
 c 56 Me. 240; 46 X. H. 220, 221 ; 8 Allen, 233. 
 Schuerman v. Missouri R. Co., 3 Mo. 
 
 App. 565. p. 552. 
 Scott V. Dublin etc. R. Co., Irish Rep. 
 lie. L. 377. pp. 231,266. 
 c 24 Upper Canada Q. B. 106. 
 Sears v. Eastern R. Co., 14 Allen, 433. 
 p. G8. 
 
 c 63 Me. 301 ; 42 N. H. 604. 
 Seabrook v. Hecker, 2 Robt»291. p. 
 
 562. 
 Seaver v. Boston etc. R. Co., 14 Gray, 
 466. p. 48. 
 
 c 102 Mass.5»4; 49 Barb. 326; 14 Minn. 364; 
 46 Mo. 169; 10 Allen, 237, 238; 55 Ind. 49; 11 
 Kan. 93; 59 Pa. St. 251; S Allen, 446; 3 Col. 
 510; 119 Mass. 421; 41 Ala. 717; 8 Kan. 517. 
 Seger v. Burkhamsted, 22 Conn. 290. 
 p. 571. 
 
 C 33 Conn. 55; 27 Conn. 300; 44 Iowa, 322; 
 48 N. H. 545 ; 6 Xev. 231, 233. 
 Seigel V. Eisen, 41 Cal. 109. pp. 220, 
 
 259, 445. 
 Semler v. Commissioners of Emigra- 
 tion, 1 Hilt. 244. pp. 28, 520. 
 c 3 Daly, 398. 
 Senecal v. Richelieu Co., 15 Lower Can- 
 ada Jur. 1. pp. 511, 515. 
 Seymour v. Chicago etc. R. Co., 3 Biss. 
 
 43. pp. 110, 201, 412, 413, 572, 575. 
 Seymour v. Greenwood, 6 Hurl. & N. 
 359; s. c. 30 L. J. (Exch.) 189; 9 
 Week. Rep. 518 (affirmed on appeal, 
 30 L. J. (Exch.) 327 ; 7 Hurl. & N. 
 
 359; 9 Week. Rep. 785; 4 L. T. (n. 
 
 S.) 833). pp. 301, 363, 373, 374. 
 
 c 3 Clifif. 429; 21 Ohio St. 524; L. R. 8 C. P. 
 154; 42 L. J. (C. P.) 78; L. R. 2 Q. B. 536, 539; 
 36 Wis. 675; 46 N. Y. 29; Irish Rep. 5 C. L. 17, 
 18; L. R. 3 C. P. 643; 57 Me. 215; 56 N. Y. 200; 
 47 N. Y. 126 ; 15 Upper Canada C. P. 438 ; L. R. 
 5 C. P. 643; 12 Allen, 55. d L. R. 2 Q. B. 539. 
 Sharp V. Gray, 9 Bing. 457 ; s.c. 2 Moo. 
 
 & S. 621. pp. 115, 116, 117, 120, 121, 
 
 126, 127, 130, 131, 134, 135, 138, 146, 
 
 147, 154, 155, 158, 198, 199, 236, 238, 
 
 355, 453. 
 
 c 3 Clitf. 420; 26 N. Y. 104; 44 N. Y. 488; 48 
 N. H. 313; 8 Best & S. 379, 385, 386, 391, 402, 
 403 ; L. R. 2 Q. B. 419, 424, 425, 429, 438, 439 ; 36 
 L. J. (Q. B.) 185, 187, 190, 195; 13 Wend. 627; 
 13 Vt. 327; 4 Gill, 421; L. R. 5 Q. B. 195, 512; 
 13 Conn. 327 ; 6 Barb. 357 ; 23 N. H. 284. d L. 
 R. 4 Q. B. 387, 392; 9 Mete. 7, 12. ? 21 Md. 
 301 ; 44 N. Y. 481, 482. 
 Shaw V. New York etc. R. Co., 6 Eng. 
 
 RaU. Cas. 87; s. c. 13 Q. B. 347. p. 
 
 528. 
 Shea V. Sixth Avenue R. Co., 62 N. Y. 
 
 180; s. c. 1 Abb. N. C. 550; 5 Daly, 
 
 221. pp. 3G7, 447. 
 
 C 37 Mich. 213. 
 
 Shedd V. Troy etc. R. Co., 40 Vt. 88. 
 
 pp. 71, 376. 
 
 c 67 Me. 165; 17 Alb. L. J. 367; 6 Cent. L. 
 J. 382 ; 54 N. Y. 516. 
 
 Sheerman v. Toronto etc. R. Co., 34 
 
 Upper Canada Q. B. 451. p. 49. 
 Shelton v. Lake Shore etc. R. Co., 29 
 
 Ohio St. 214. pp. 338, 339, 376. 
 
 c 37 Mich. 346. 
 Shepherd v. Midland R. Co., 20 Week. 
 
 Rep. 705; s. c. 25 L. T. (n. s.) 879. 
 
 p. 110. 
 Sheridan v. Brooklyn etc. R. Co., 36 N. 
 
 Y. 39. pp. 261, 270, 291. 
 
 C 38 N. Y. 262. 
 Sherley v. Billings, 8 Bush, 147. pp. 
 
 304, 317, 364, 365, 369, 557, 571, 581. 
 
 c 36 Wis. 464, 675. 
 Sherlock v. Ailing, 93 U. S. 99; s.c. 
 
 44 Ind. 184. pp. 481, 544, 556. 
 
 c 95 U. S. 487. 
 Sherman v. Chicago etc. R. Co., 40 
 
 Iowa, 45. pp. 69, 71, 376. 
 Shiells V. Blackburne, 1 H. Black. 168. 
 
 pp. 41, 178.
 
 TABLE OF CASES CITED. 
 
 Iv 
 
 Ship Anglo-Norman, 4 Sawyer, 185. p. 
 
 473. 
 Shoemaker v. Kingsbury, 12 Wall. 369. 
 
 p. 27. 
 
 c 33 Wis. 63. 
 Silva V. Low, 1 Johns. Cas. 184. p. 357. 
 Simmons v. New Bedford etc. Steam- 
 boat Co., 97 Mass. 361; s. c. 100 
 
 Mass. 34. pp. 266, 356, 357, 560, 
 
 562. 
 Simson v. London etc. Omnibus Co., 
 
 42 L. J. (C. P.) 112; s. c. 21 Week. 
 
 Rep. 595; L. R. 8 C. P. 390; 28 L. 
 
 T. (N. s.) 560; L. R. 6 Q. B. 377. 
 
 p. 211. 
 Siner v. Great Western R. Co., L. R. 3 
 
 Exch. 150; s. c. L. R. 4 Exch. 117; 
 
 37 L. J. (Exch.) 98 ; 17 Week. Rep. 
 
 417. pp. 229, 238, 268. 
 
 C 40 L. J. (Q. B.) 191, 192; L. R. 6 Q. B. 382, 
 384, 385 ; 28 Mich. 483 ; 49 N. Y. 54. «1 L. R. 4 
 C. P. 741; Irish Rep. 7 C. L. 47, 48; 44 Miss. 
 486; 2 Q. B. Div. 87, 88, 89; ,L. R. 7 C. P. 325; 
 41 L. J. (C. P.) 325. ? 24 wIs. 586. 
 
 Skinner v. London etc. R. Co., 2 Eng. 
 
 Law & Eq. 360; s. c. 5 Exch. 787; 
 
 15 Jur. 299. pp. 137, 207, 211, 212. 
 
 c 28 L. J. (Exch.) 4 ; 8 Best & S. 389 ; L. R. 
 2 Q. B. 427; 36 L. J. (Q. B.) 189; 9 Jur. (N. S.) 
 341 ; 1 Moo. P. C. C. 11 ; 1 Duer, 584. 
 Slaughter-House Cases, l(i Wall. 36. 
 
 p. 347. 
 Sleath V. Wilson, 9 Car. & P. 607. pp. 
 
 35, 359. 
 Slimmer v. Merry, 23 Iowa, 90. p. 26. 
 Sloman v. Great Western R. Co., 67 N. 
 
 Y. 208; s. c. 6 Hun, 546; 3 Abb. N. 
 
 C. 572. pp. 522, 537. 
 Smith V. Boston etc. R. Co., 44 N. H. 
 
 325; s. c. 3 Am. L. Reg. (n. s) 127. 
 
 pp. 611, 521. 
 
 C 6 Hun, 547; 56 Me. 62; 8 Am. L. Reg. (N. 
 8.) 399; 98 Mass. 387; 46 N. H. 220. '221. 
 Smith V. Brown, L. R. 6 Q. B. 729. p. 
 
 544. 
 Smith V. Great Eastern R. Co., L. R. 2 
 
 C. P. 4; s. c. 36 L. J. (C. P.) 22; 15 
 
 Week. Rep. 131 ; 15 L. T. (n, s.) 246. 
 
 p. 105. 
 Smith V. Hestonville etc. R. Co., 10 
 
 Cent. L. J. 272. pp. 292, 445. 
 Smith V. Home, 8 Taun. 144. p. 495. 
 
 Smith V. London etc. Docks Co., L. R. 
 
 3C. P. 326. p. 473. 
 
 c 57 N. T. 387; 62 Me. 5R3 ; 41 N. Y. 53'b; 59 
 N. Y. 32 ; 35 N. J. L. 25 ; 4 Hun, 163. 
 Smith V. New York etc. R. Co., 24 N. 
 
 Y. 222. pp. 45, 384, 401. 
 Smith V. O'Connor, 48 Pa. St. 218. p. 
 
 293. 
 Smith V. Pittsburgh etc. R. Co., 23 Ohio 
 
 St. 10. p. 571. 
 
 c 44 Iowa, 321 ; 11 Nev. 371. 
 Smith V. Smith, 2 Pick. 621. pp. 284, 
 
 551. 
 
 C 21 Pick. 147; 19 Conn. 576; 10 Mete. 365; 
 18 N. Y. 252; 4 Gray, 180; 11 Me. 337; 20 lU. 
 490; 8 Gray, 132; 5 Duer, 25; 25 Me. 47; 25 
 Ind. 197; 46 Pa. St. 161, 163; 4 Am. L. Reg. (N. 
 S.) 19; 14 Gray, 251; 11 Mete. 444; 17 Iowa, 
 463 ; 6 Iowa, 452 ; 7 Pick. 190 ; 3 Fla. 26 ; 32 Me. 
 52 ; 24 X. J. L. 270, 283, 285 ; 2 Hilt. 39 ; 4 N. Y. 
 300; 12 Mete. 417; 43 Wis. 527; 6 Cent. L. J. 
 430; 12 Pick. 117; 35 Ind. 466; 33 N. J. L. 439; 
 35 N. H. 276; 2 Cush. 605. 
 Smith V. Steele, L. R. 10 Q. B. 125; s. 
 
 c. 44 L. J. (Q. B.) 60. p. 49. 
 Smith V. Wilson, 31 How. Pr. 272. pp. 
 
 303, 470. 
 Smoot V. Wetumpka, 24 Ala. 112. pp. 
 
 552, 553. 
 
 c 33 Ala. 130, 132 ; 32 Iowa, 328 ; 4 Mieh. 562 ; 
 45 Ala. 184; 21 Mich. 122; 122 Mass. 378; 21 
 Iowa, 414; 91 U. S. .551; 48 Cal. 426; 26 Iowa, 
 268; 1 Black, 53; 36 Ala. 367; 17 111. 146; 53 
 Ala. 529 ; 51 Ala. 145, 148. 
 Snow V. Eastern R. Co., 12 Mete. 44. 
 
 p. 538. 
 
 c 11 Humph. 422; 1 Hilt. 282. 
 Southcote's Case, 4 Burr. 2301. p. 
 
 499. 
 Southcote V. Stanley, 1 Hurl. & N. 247; 
 
 s. c. 25 L. J. (Exch.) 399. p. 79. 
 
 c 53 Pa. St. 459; 5 C. B. (N. S.) 565; 4 Jur. 
 (N. S.) 513; 27 L. J. (C. P.) 321; EI. Bl. & El. 
 170; L. R. 1 C. P. 286; 35 L. J. (C. P.) 189; 12 
 Jur. (N. S.) 433; 41 N. Y. 532, .5.33; L. R. 6 
 Exch. 77; 40 L. J. (Exch.) 45; 25 Mich. 7; 58 
 Ind. 126; 40 L. J. (Q. B.) 80; L. R. 6 Q. B. 76. 
 Southern Express Co. v. Crook, 44 Ala. 
 
 468. p. 389. 
 Southern Express Co. v. Moon, 39 Miss. 
 
 822. p. 389. 
 Southern R. Co. v. Kendrick, 40 Miss. 
 
 374. pp. 66, 226, 5.57, 575, 576. 
 
 V 44 Miss. 490, 491, 492; 50 Miss. 319. d 44 
 Miss. 495.
 
 Ivi 
 
 TABLE OF CASES CITED. 
 
 South-Western K. Co. v. Bently, 51 Ga. 
 
 311. p. 624. 
 Soutii- Western R. Co. v. Paulk, 24 Ga. 
 
 356. pp. 267, 547. 
 Spear v. Richardson, 37 N. H. 23. p. 
 
 659. 
 Spencer v. Campbell, 9 Watts & S. 32. 
 
 p. 332. 
 
 c 26 Pa. St. 120; 51 N. T. 490; 51 Me. 338. 
 Spencer v. Milwaukee etc. R. Co., 17 
 
 Wis. 487. p. 258. 
 
 c 39 Md. 351 ; 51 111. 338, 341. 
 Spencer v. Utica etc. R. Co., 5 Barb. 
 
 337. p. 553. 
 Spooner v. Brooklyn etc. R. Co., 36 
 
 Barb. 217. pp. 260, 291. 
 
 c 8 Hun, 498; 67 N. Y. 597. 
 Sprague v. Hartford etc. R. Co., 5 R. I. 
 
 233. p. 543. 
 Sprague v. Smith, 29 Vt. 421. pp. 412, 
 
 414. 
 
 c 50 Me. 240; 49 N. H. 34. 
 Squire v. Central Park etc. R. Co., 4 
 
 Jones & Sp. 436. p. 553. 
 
 c 50 How. Pr. 128; 8 Jones & Sp. 182. 
 Stallard v. Great Western R. Co., 2 
 
 Best & S. 419; s. c. 8 Jur. (n. s.) 
 
 1076; 31 L. J. (Q. B.) 137; 10 Week. 
 
 Rep. 488; 6 L. T. (n. 8.) 217. p. 
 
 519. 
 St. Amand v. Lizardi, 4 La. 243. pp. 
 
 365, 469. 
 Standish v. Narragansett Steamship 
 
 Co., Ill Mass. 512. p. 341. 
 
 C 48 Vt. 235. 
 Stanton v. Bell, 2 Hawks, 145. p. 179. 
 State V. Campbell, 32 N. J. L. 309. pp. 
 
 71, 336, 340, 375, 376. 
 
 c67 Me. 165; 17 Alb. L. J. 367; 6 Cent. L. 
 J. 382. 
 State V. Chovin, 7 Iowa, 204. pp. 341, 
 
 376. 
 
 c 45 Iowa, 572 ; 15 Minn. 56 ; 46 N. H. 219. 
 State V. Davidson, 30 Vt. 377. p. 557. 
 State V. Duffy, 7 Nev. 342. p. 349. 
 State V. Goold, 53 Me. 279. p. 329. 
 
 c 15 N. Y. S. C. (T. & C.) 580. 582; 45 Md. 
 352; 7 Phila. 13; 58 Me. 192. 
 State V. Grand Trunk R. Co,., 58 Me. 
 
 176. p. 234. 
 State V. McCann, 21 Ohio St. 198. p. 
 
 349. 
 
 State V. Overton, 24 N. J. L. 435. pp. 
 
 65, 70, 313, 315, 345, 377. 
 
 c 6 Reporter, 490; 47 Iowa, 86; 10 Oh. Leg. 
 N. 78; 17 Pa. St. 436, 437; 5 Daly, 61; 55 111. 
 189; 34 Md. 536; 46 N. H. 219, 220. ? 36 Wis. 
 459,460; 7 Iowa, 210. 
 State V. Railroad Co., 52 N. H. 529. p. 
 
 663. 
 State V. Ross, 26 N. J. L. 224. pp.301, 
 
 303, 375. 
 
 c 33 Iowa, 567. 
 State V. Thompson, 20 N. H. 250. pp. 
 
 336, 375. 
 
 c 76 Pa. St. 74. 
 State of New York (The), 7 Ben. 450. 
 
 pp. 538, 547. 
 Steamboat Co. v. Chase, 16 Wall. 522. 
 
 p. 544. 
 Steamboat New World v. King, 16 How. 
 
 469. pp. 44, 104, 197, 205, 207, 224, 
 
 359, 391, 398, 399, 480. (In fuU, p. 
 
 175.) 
 
 c20 La. An. 303; 1 OliflF. 326; 24 La. An. 
 167; 47 Ind. 485, 487; 17 How. .383; 91 U. S. 
 494; 17 Wall. 374; 51 Pa. St. 325; 3 Cliff. 425; 
 McAll. 107; 41 Ma.. 502; 44 Miss. 490; 25 N. Y. 
 457; 28 Vt. 185; 34 N. J. L. 516; 2 Am. L. T. 
 119; 48 N. H. 313, 314; 58 N. Y. 134; 19 Ohio 
 St. 13; 1 Cin. Superior Ct. 55; 6 Ben. 371; 24 
 N. Y. 186, 188, 189, 193; 26 Barb. 645, 646; & 
 Am. L. Reg. 715, 716; 3 E. D. Smith, 333; 3 
 Allen, 21; 37 Mo. 546; 15 Alb. L. J. 62; 20 
 Minn. 12S, 130, 133; 37 Mich. 115; 49 Me. 281; 
 5 Leg. Gaz. 413; 39 Iowa, 249,250; 1 Chase's 
 Dec. 151. ? 64 Mo. 447. 
 
 Steele v. Townsend, 37 Ala. 247. pp. 
 
 389, 393. 
 Steers v. Liverpool etc. Steam Co., 
 
 57 N. Y. 1. pp. 527, 539. 
 Stephen v. Smith, 29 Vt. 160. pp. 25,. 
 
 316, 317, 341, 579. 
 
 C 36 Wis. 462, 463, 673 ; 15 N. Y. S. C. (T. & 
 C.) 580; 15 Gray, 24; 53 Me. 283. 
 Stevens v. Armstrong, 6 N. Y. 435. p. 
 
 173. 
 Stewart v. London etc. R. Co., 3 Hurl. 
 
 & Colt. 135; s. c. 10 Jur. i^N. s.) 805; 
 
 33 L. J. (Exch.) 199 ; 12 Week. Rep. 
 
 689; 10 L. T. (n. s.) 302. p. 528. 
 
 c L. R. 6 C. P. 51 ; 15 Upper Canada C. P. 
 436; 40 L. J. (C. P.) 12; Irish Rep. 9 C. L. 112, 
 113; 2 Q. B. Div. 429; Irish liep. 3 C. L. 580. 
 Stiles V. Geesey, 71 Pa. St. 439. p. 
 
 284.
 
 TABLE OF CASES CITED. 
 
 Ivii 
 
 Stiles V. Western R. Co., 8 Mete. 44. 
 
 p. 558. 
 Stillson V. Hannibal etc. R. Co., 67 Mo. 
 
 671 ; s. c. 7 Cent. L. J. 107. p. 292. 
 Stimpson v. Connecticut etc. R. Co., 
 
 98 Mass. 83. pp. 511, 539. 
 
 c 16 Hun, 547. 
 Stinson v. New York etc. R. Co., 32 N. 
 
 Y. 337. pp. 386, 401, 402. 
 St. Louis etc. R. Co. v. Dalby, 19 111. 
 
 353. pp. 338, 341, 376, 545. 
 
 c7 Phila. 13; 44 Iowa, 31S; 48 111. 254; 15 
 Minn. 56; 46 N. H. 219; 37 111. 508. 
 St. Louis etc. R. Co. v. Myrtle, 51 Ind. 
 
 566. p. 343. 
 
 C 57 Ind. 597; 55 Ind. 372. 
 St. Louis etc. R. Co. v. South, 43 111. 
 
 176. pp. 341, 342, 376. 
 Stockton V. Frey, 4 Gill, 406. pp. 199, 
 
 211, 545, 571. 
 
 c2l Md. 283, 284, 288, 300; 39 Md. 353; 2 
 Mont. 525, 126; 11 Gratt. 712, 715; 6 Nev. 236; 
 30 Md. 229. 
 Stockwell V. United States, 13 "Wall. 
 
 542. p. 482. 
 Stoddard v. Long Island R. Co., 5 
 
 Sandf. S. C. 180. p. 383. 
 Stodcuird V. St. Louis R. Co., 65 Mo. 
 
 514. p. 563. 
 Stokes V. Eastern Counties R. Co., 
 
 2 Fost. & Fin. 691. pp. 131, 139, 
 
 213. 
 
 c L. R. 4 Q. B. 390; 8 Best & S. 380, 392; L. 
 R. 2 Q. B. 419, 429; 36 L. J. (Q. B.) 185, 190; 97 
 Mass. 368. 
 Stokes V. Saltonstall, 13 Pet. 181. pp. 
 
 28, 114, 122, 156, 191, 192, 196, 211, 
 
 213, 236, 237, 238, 255, 261, 266, 357, 
 
 410, 558. (In full, p. 183.) 
 
 c 1 Abb. Adm. 359; 23 Pa. St. 150; 21 Md. 
 283, 290, 298; 1 McLean, 545; 2 McLean, 160; 
 2 Duv. 558; 2 Col. 458; 15 Mich. 140; 34 Barb. 
 268; 3 Cliff. 421; 38 Miss. 275; 11 Heisk. 403, 
 *04; 22 Wall. .WO; 2 Mont. 523, 526; 24 Ga. 
 365; 44 Ind. 201,204; 48 N. H. 314; 39Md.353; 
 4 Iowa, 548, 549 ; 26 111. 387; 21 Conn. 254; 32 
 Barb. 659; 18 N. Y. 638, 539, 544; 13 Vt. 327; 4 
 GiU, 423 ; 24 N. Y. 193 ; 5 Duer, 197 ; 49 Me. 
 281; 13 Cal. 603; 11 Gratt. 710; 17 111. 410; 5 
 Ind. 341; 13 Conn. 327; 16 Barb. 116; 37 Mo. 
 540; 9 Mete. 13; 15 111. 469. d II Allen, 317. 
 Stone V. Chicago etc. R. Co., 47 Iowa, 
 82; 8. c. 10 Ch. Leg. N. 78. pp. 70, 
 
 71, 340, 377, 563. 
 
 Stoneraan v. Erie R. Co., 52 N. Y. 429. 
 pp. 522, 523, 538. 
 C67N. T. 212; 6 Hun, 547. 
 
 Stoneseifer v. Sheble, 31 Mo. 243. p. 
 
 568. 
 
 C 59 Ind. 320. 
 Storer v. Gowen, 18 Me. 177. p. 177. 
 Stuart V. Machias Port, 48 Me. 477. 
 
 p. 271. 
 Sullivan v. Pliiladelphia etc R. Co., 30 
 
 Pa. St. 234; s. c. 6 Am. L. Reg. (n. 
 
 8.) 342. pp. 199, 208, 211, 212, 317, 
 
 562, 563. 
 
 c 36 Wis. 464; 33 Pa. St. 326; 56 Pa. St. 296; 
 59 Pa. St. 250; 12 Wall. 376; 34 N. Y. 412; 11 
 Allen, 505. 
 Sunday v. Gordon, Blatclif. & H. Adm. 
 
 569. pp. 66, 466, 467. 
 Sutton V. Delaware etc. R. Co., 66 N. Y. 
 
 243; s. c. 4 Hnn, 760. pp. 225, 233. 
 Sutton V. Temple, 12 Mee. & W. 64. 
 
 p. 137. 
 Suydam v. Grand Street etc. R. Co., 40 
 
 Barb. 375. p. 553. 
 
 c 36 Mo. 32; 25 Ind. 197. 
 Swarthout v. New Jersey Steamboat 
 
 Co., 48 N. Y. 209; s. c. 46 Barb. 222. 
 
 p. 475. 
 Swindler v. Hilliard, 2 Rich. L. 286. 
 
 pp. 389, 393. 
 Sylph (The), 4 Blatchf. 24; s. c. 37 L. 
 
 J. (Adm.) 14; L. R. 2 Adm. 24; 17 
 
 L. T. (N. s.) 519. p. 481. 
 
 c L. R. 2 P. C. 449; 38 L. J. (Adm.) 14; L. 
 R. 2 Adm. 328. 329. 
 
 T. 
 
 Taber v. Delaware etc. R. Co., 71 N. 
 
 Y. 489. pp. 231, 268. 
 Talley v. Great Western R. Co., 6 C. 
 
 P. 44; s. c. 40 L. J. (C. P.) 9. p. 
 
 616. 
 
 c IS Alb. L. J. 33; I Exch. Div. 22; 16 Abb. 
 Pr. (N. S.) 355; 32 Wis. 92, 96. «l L. R. 6 Q. 
 
 B. 618 ; 40 L. J. (Q. B.) 302 ; 24 Upper Canada 
 
 C. P. 212. 
 
 Tarbell v. Central Pacific R. Co., 34 
 Cal. 616, pp. 28, 29, 30, 376. 
 
 Taylor v. Ashton, 11 Mee. & W. 401. 
 p. 56. 
 
 Taylor v. Day, 16 Vt. 566. p. 548. 
 
 Taylor v. Grand Trunk R. Co., 48 N.
 
 Iviii 
 
 TABLE OF CASES CITED. 
 
 H. 304; s. c. 8 Am. L. Reg. (n. s.) 
 
 575. pp. 201, 202, 215, 574. 
 Tebbutt V. Bristol etc. R. Co., 40 L. 
 
 J. (Q. B.) 78; s. c. 23 L. T. (n. s.) 
 
 772; L. R. 6 Q. B. 73; 19 Week. Rep. 
 
 383. p. 106. 
 Terra Haute etc. R. Co. v. Fitzgerald, 
 
 47 Ind. 79. pp. 69, 71, 376, 549. 
 Terre Haute etc. R. Co, v. Graham, 46 
 
 Ind. 239. p. 549. 
 Terre Haute etc. R. Co. v. Vanatta, 
 
 21 111. 188. pp. 376, 377, 572, 577, 
 
 579. 
 
 c 40 111. 504; 43 HI. 368; 48 111. 257; 63 111. 
 307 ; 46 N. H. 219. d 79 111. 590, 592. 
 Terry v. Flushing etc. R. Co., 13 Hun, 
 
 359; s.c. 4 Abb. N. C. 523. p. 70. 
 Terry v. Jewett, 20 Alb. L. J. 393. p. 
 
 233. 
 Thatcher v. Great Western R. Co., 4 
 
 Upper Canada C. P. 543. p. 562. 
 Thayer v. St. Louis etc. R. Co., 22 Ind. 
 
 26. 
 
 c 44 Iowa, 201 ; 20 Mich. 127 ; 50 Mo. 305 ; 18 
 Iowa, 284; 14 Minn. 363; 50 Ind. 84; 23 lud. 
 83 ; 34 Ind. 299 ; 8 Cent. L. J. 14 ; 58 Ind. 28 ; 40 
 N. y. 449. o 47 Ind. 482. 
 
 Theobold v. Railway Passengers' Assur. 
 
 Co., 26 Eng. Law & Eq. 432. pp. 51, 
 
 571. 
 Thomas v. Great Western R. Co., 14 
 
 Upper Canada Q. B. 389. p. 512. 
 Tliomas v. Hook, 4 Phila. 119.. p. 
 
 220. 
 Thomas v. Rhymney R. Co., L. R. 5 
 
 Q. B. 266 ; s. c. (affirmed in Exchequer 
 
 Chamber), L. R. 6 Q. B. 226 ; 40 L. J. 
 
 (Q.B.)89; 19 Week. Rep. 477; 24 L. 
 
 T. (N. S.)145. pp.412, 414, 415, 416, 
 
 417. 
 
 e 35 Upper Canada Q. B. 560; 42 L. J. 
 (Exch.) 91, 94, 96. 
 Thompson v. Belfast etc. R. Co., Irish 
 
 Rep. 5 C. L. 517. pp. 229, 232, 233, 
 
 268. 
 Thompson v. New Orleans etc. R. Co., 
 
 50 Miss. 315. pp. (iG, 568, 575. 
 Thompson v. North Missouri R. Co., 
 
 51 Mo. 190. p. 5^2. 
 
 Thorogood v. Bryan, 8 C. B. 115; s. c. 
 18 L. J. (C. P.) 336. pp. 282, 283, 
 
 284, 285, 286, 287, 288, 289, 294. (In 
 
 full, p. 273.) 
 
 c 6 Gray, 72; L. R. 10 Exch. 51, 52; 4 Am. 
 L. Reg. (N. 8.) 17; 29 Vt. 428; 11 C. B. 147; 6 
 Duer, 408; 38 N. Y. 262; 105 Mass. 79; 31 Barb. 
 388; 17 Barb. 97; L. R. 9 Exch. 182; 43 L. J. 
 (Exch.) 103,104; 5 Exch. 346; 19 L.J. (Exch.) 
 298; 24 Md. 104; 44 L. J. (Exch.) 92, 93; 15 
 Irish Rep. C. L. (N. S.) 343; 46 Pa. St. 159, 160, 
 161; 38 N. Y. 262. ? 2 C. B. (N. S.) 750; El. 
 Bl. & El. 728; 43 Wis. 526; 6 Cent. L. J. 430; 
 19 N. Y. 343 ; 36 N. J. L. 226, 228. 
 Thorp V. Brookfleld, 36 Conn. 321. p. 
 
 271. 
 Thorp V. Hammond, 12 Wall. 409. p. 
 
 487. 
 Thorpe v. New York etc. R. Co., 19 
 
 Alb. L. J. 471; s. c. 13 Hun, 70; 4 
 
 Abb.N. C. 523. pp. 224, 346, 369, 520. 
 Thrings v. Central Park R. Co., 7 Robt. 
 
 616. p. 562. 
 Thurston v. Union Pacific B. Co., 4 DUl. 
 
 321 ; s.c. 8 Ch. Leg. N. 323. pp. 29, 
 
 302, 375. (In full, p. 10.) 
 Titcomb v. Fitchburg R. Co., 12 Allen, 
 
 254. p. 220. 
 Tobin V. Portland etc. R. Co., 59 Me. 
 
 183. pp. 106, 226. 
 
 <■ 62 Me. 562. 
 
 Todd V. Old Colony R. Co., 3 Allen, 18 ; 
 
 s. c. 7 Allen, 207. pp. 44, 252, 257. 
 
 c 56 Pa. St. 298; 121 Mass. 428; 16 Am. L. 
 Reg. 666 ; 5 Bush, 7 ; 8 Allen, 230, 235 ; 6 Cent. 
 L. J. 47; 39 Md. 346; 14 Allen, 432; 20 Minn. 
 128; 29 Iowa, 87; 37 Mich. 114; 95 U. S. 443. 
 fl 104 Mass. 141. ? 17 Wis. 495. 
 Toledo etc. R. Co. v. Baddeley, 54 111. 
 
 19. pp. 227, 271. 
 Toledo etc. R. Co. v. Beggs, 85 lU. 80. 
 
 pp. 44, 211, 212, 222, 402, 555, 556. 
 Toledo etc. R. Co. v. Bevin, 26 Ind. 443. 
 
 p. 552. 
 Toledo etc. R. Co. v. Brooks, 81 lU. 245. 
 
 p. 44. 
 Toledo etc. R. Co. v. Daniels, 21 Ind. 
 
 256. p. 547. 
 Toledo etc. R. Co. v. Hammond, 33 
 
 Ind. 379. pp. 510, 513, 532, 533. 
 Toledo etc. R. Co. v. McDouough, 53 
 
 Ind. 289. pp. 338, 339, 578. 
 Toledo etc. R. Co. v. Patterson, 63 111. 
 
 304. pp. 343, 575. 
 
 C 1 Bradw. 477, 478. d 79 111. 540.
 
 TABi:^ OF CASES CIT: 
 
 lix 
 
 Toledo etc. R. Co. v. Riley, 47 111. 514. 
 
 p. 271. 
 Toledo etc. R. Co. v. Rumbold, 40 111. 
 
 143. p. 415. 
 Tomlinson v. Collett, 3 Blackf . 436. p. 
 
 558. 
 Toomey v. London etc. R. Co., 3 C. B. 
 
 (N. s.) 146; s. c. 27 L. J. (C. P.) 39. 
 
 pp. 79, 80, 83, 84, 90, 105. (In full, p. 
 
 72.) 
 
 c 28 Mich. 453 ; 34 N. Y. 14 ; 4 Hurl. & N. 
 784, 786; L. R. 8 Q. B. 177; 42 L. J. (Q. B.) 109; 
 U9 L. J. (C. P.) 97, 335; 29 L. J. (Exch.) 97; 8 
 C. B. (N. S.) 572; 7 Jur. (N. S.) 169; 35 N. J. L. 
 33; L. R. 1 C. P. 282; 35 L. J. (C. P.) 187; 73 
 Pa. St. 125 ; 36 L. J. (C. P.) 23 ; L. R. 2 C. P. 10 ; 
 9 Jones & Sp. 28; 59 N. Y. 366; 10 AUeu, 192; 
 
 3 App. Cas. 1171. 
 
 Torpey v. Grand Trunk R. Co., 20 Up- 
 per Canada C. P. 446. p. 49. 
 C 34 Upper Canada Q. B. 457, 462. d 33 
 
 Upper Canada C. P. 548, 549. 
 
 Torpey v. Williams, 3 Daly, 162. pp. 
 511, 512, 520. 
 c 3 Daly, 393 ; 32 Wis. 100. 
 
 Tower v. Utica etc. R. Co., 7 Hill, 47. 
 p. 518. 
 c 1 Daly, 153, 154, 205, 495; 3 Daly, 396; 15 
 
 Mich. 141; 3 Barb. 389; 2 Ch. Leg. N. 397; 73 
 
 111. 365; lis Mass. 277; 16 Abb. Pr. (y. s.) 354 
 
 2 Vbb. Pr. (N. 8.) 51 ; 32 Wis. 96; 2 Daly, 2.55 
 
 4 Cent. L. J. 37 ; 93 U. S. 184 ; 15 Alb. L. J. 191 
 21 Ind. 57. '! 15 Mich. 135; 17 Am. L. Reg. 
 (N. S.) 515 . X. Y. 62. 
 
 Townsend v. New York etc. R. Co., 6 
 
 Thomp. & C. 495; s. c. 4 Hun, 217. 
 
 pp. 338, 339, 376. 
 
 c 29 Ohio St. 219 ; 37 Mich. 346 ; 66 N. Y. 458 ; 
 48 Vt. 235. 
 
 Tracy v. Wood, 3 Mason, 132. p. 178. 
 Travers v. Kansas etc. R. Co., 63 Mo. 
 
 421. pp.369, 549. 
 Truex v. Erie R. Co., 4 Lans. 198. p. 
 
 261. 
 Tucker v. Henniker, 41 N. H. 317. p. 
 
 220. 
 Tuff V. Warman, 2 C. B. (x. s.) 750; 
 
 s. c. 5 C. B. (x. s.) 573. pp. 251, 
 
 283, 285. 
 
 C 20 N. Y. 75; 5 Hun, 480; 4 Robt. 213; .38 
 Md. .599; 101 Mass. 463, 464, 465, 466; 29 Md. 
 436; 95 U. S. 442 ; 52 X. H. 5.54 ; 12 C. B. (N. S.) 
 78; 24 Upper Canada Q. B. 105; 6 Cent. L. J. 
 46; 36 N. J. L. 228. 
 
 Tuller V. Talbot, 23 111. 357. pp. 203, 
 
 206, 239. 
 
 c 15 Alb. L. J. 62 ; ,56 111. 142 ; 5 Ch. Leg. N. 
 10 ; 48 N. H. 316 ; 4 Col. 9. 
 Tuuney v. Midland R. Co., L. R. 1 C. 
 
 P. 291 ; s. c. 12 Jur. (n. s.) 691. pp. 
 
 48, 147. 
 
 c 53 lU. 340; 49 Barb. 326 ; 62 Me. 465 ; 1 C. 
 P. Div. 167; 59 Pa. St. 246, 252; 45 L. J. 389. 
 Turner v. North Beach etc. R. Co., 34 
 
 Cal. 594. pp. 374, 575, 580. 
 
 c 57 x^Ie. 250; 34 Cal. 590; 44 Iowa, 318; 3 
 So. Car. 598. 
 Turner v. North Carolina R. Co., 63 N. 
 
 C. 522. p. 28. 
 Turner v. Richmond etc. R. Co., 70 N. 
 
 C. 1. p. 376. 
 Tyly V. Morrice, Carth. 486. p. 497. 
 
 u. 
 
 Union Ins. Co. v. Shaw, 2 Dill. 14. p. 
 
 482. 
 Union Pacific R. Co. v. Hand, 7 Kan. 
 
 380. pp. 201, 555, 577, 583. 
 Union Pr.clflc R. Co. v. Nichols, 8 Kan. 
 
 505; s. c. 4 Ch. Leg. N. 82. p. 46. 
 
 c 64 Mo. 474. 
 United States v. The Anna, 2 Am. L. 
 
 Reg. 421. p. 480. 
 United States v. The Bright Star, 7 Int. 
 
 Rev. Rec, 179. p. 481. 
 United States v. The Candace, 9 Int. 
 
 Rev. Rec. 177. p. 482. 
 United States v. Coombs, 12 Pet. 72. 
 
 p. 486. 
 United States v. The C. B. Chu -ch, 1 
 
 Woods, 275. p. 482. 
 United States v. Cruikshank, 92 U. S. 
 
 542. p. 347. 
 United States v. The Echo, 4 Blatchf. 
 
 446. p. 481. 
 United States v. Freeman, 3 How. 556. 
 
 p. 486. 
 United States v. The James Morrison, 
 
 Newb. Adm. 241. p. 481. 
 United States v. The Louisa Barbara, 
 
 Gilp. 332. p. 479. 
 United States v. The Newrea, 19 How. 
 
 94. p. 479. 
 United States v. Norton, 1 Low. 179. 
 
 p. 480.
 
 Ix 
 
 TABLE OF CASES CITED. 
 
 United States v. The Ottawa, Newb. 
 
 Adm. 536. pp. 475, 481. 
 United States v. Eeese, 92 U. S. 214. 
 
 p. 347. 
 United States v. Tlie Seneca, 1 Am. L. 
 
 Reg. (N. s.) 281. p. 481. 
 
 United States v. Simms, 1 Crauch, 252. 
 p. 482. 
 
 United States v. The Sun, 1 Am. L. 
 
 Reg. (N. s.) 277; s. c. 4 West. L. J. 
 
 75. p. 481. 
 United States v. The Thomas Swan, 9 
 
 Law Rep. (n. s.) 201. p. 481. 
 United States v. The William Pope, 
 
 Newb. Adm. 256. p. 481. 
 Upshare v. Aidee, 1 Comyns, 25. p. 
 
 521. 
 
 V. 
 
 Van Buskirk v. Roberts, 31 N. Y. 661. 
 
 pp. 65, 66, 432. 
 
 c 52 N. H. 604 ; 54 N. Y. 515. 
 Van Den Eynde v. Ulster R. Co., Irish 
 
 Rep. 6 C. L. 328. p. 372. 
 Vanderplank v. Miller, Moo. & M. 169. 
 
 p. 284. 
 Van Horn v. Kermit, 4 E. D. Smith, 
 
 453. pp. 513, 524, 534, 535, 539. 
 
 c 15 Mich. 134 ; 1 Daly, 154 ; 30 N. T. 617. 
 Vankirk v. Pennsylvania R. Co., 76 Pa. 
 
 St. 66. p. 70. 
 Van Lien v. Scoville Man. Co., 14 Abb. 
 
 Pr. (n. 8.) 74 ; s. c. 4 Daly, 554. pp. 
 
 221, 562. 
 
 c 6 Cent. L. J. 46; 10 Ch. Leg. N. 121; 95 
 U. S. 442. 
 Van Santvoord v. St. John, 6 Hill, 157. 
 
 p. 429. 
 Van Toll v. South-Eastem R. Co., 12 
 
 C. B. (N. 8.) 75 ; s. c. 31 L. J. (C. P.) 
 
 241; 8 Jut. (n. s.) 1213; 10 Week. 
 
 Rep. 578; 6 L. T. (n. s.) 244. p. 
 
 519. 
 
 c 2 Q. B. Div. 428, 429. d 10 Jones & Sp. 
 363; 1 C. P. Div. 626, 631, 632. 
 
 Vedder v. Fellows, 20 N. Y. 126. pp. 
 
 335, 336, 375. 
 
 c 4 Hun, 219; 9 Thomp. & C. 497; 3 Wis. 
 570; 42 111. 424 ; 46 N. H. 220, 221. 
 
 Vicksburg v. Hennessy, 54 Miss. 391. 
 p. 552. 
 
 Vicksburg etc. R. Co. v. Howe, 62 
 
 Miss. 202. p. 108. 
 Vinton v. Middlesex B. Co., 11 Allen, 
 
 304. pp. 20, 29, 301, 302, 303, 317, 
 
 875, 443, 465. (In full, p. 6.) 
 
 C 36 Wis. 463; 53 Miss. 223; 95 U. S. 503. 
 Vinton v. Schwab, 32 Vt. 612. p. 563. 
 Virginia etc. R. Co. v. Sanger, 15 G-ratt. 
 
 230. pp. 201, 222. 
 Vose V. Lancashire etc. R. Co., 4 Hurl. 
 
 &N. 728; s. c. 4 Jur. (n. s.) 364; 27 
 
 L. J. (Exch.) 249. p. 224. 
 
 C 3 Hurl & N. 656 ; 27 L. J. (Exch.) 406 ; 32 
 Iowa, 364; 3 Robt. 82; 28 How. Pr. 473; 3 
 Exch. Div. 344; 49 N. T. 426; 48 Me. 118. 
 Vrede (The), Lush. 325; s. c. 30 L. J. 
 
 (Adm.) 209. p. 471. 
 
 w. 
 
 Wabash etc. Canal v. Mayer, 10 Ind. 
 
 400. p. 552. 
 
 c 42 Ind. 342 ; 12 Ind. 523. 
 Wade V. Kalbfleisch, 58 N. Y. 282. p. 
 
 546. 
 Wade V. Leroy, 20 How. 34. p. 551. 
 
 c 63 Barb. 266. 
 Waite V. North-Eastem R. Co., 5 Jur. 
 
 (N. s.) 936; 28 L.J. (Q. B.) 258; EL 
 
 Bl. & El. 728. pp. 283, 284, 285, 292, 
 
 294. 
 
 c 36 N. J. L. 228 ; L. R. 10 Exch. 53 ; 8 Best 
 & S. 334. ? 30 Ohio St. 470. 
 
 Wakefield v. South Boston R. Co., 117 
 
 Mass. 544. pp. 71, 376. 
 
 c 67 Me. 166; 17 Alb. L. J. 367; 6 Cent. L. 
 J. 382. 
 
 Waland v. Elkins, 1 Stark. 272. pp 
 
 410, 411, 436, 555. 
 Walker v. Erie R. Co., 63 Barb. 2G0 
 
 p. 212, 560, 569, 570, 583. 
 Walker v. Herron, 22 Texas, 55. p 
 
 553. 
 Walker v. South-Eastem R. Co., L. R 
 
 5 C. P. 640. p. 373. 
 Walker v. Transportation Co., 3 Wall 
 
 150. pp. 391, 484. 
 Walker v. Westfleld, 39 Vt. 246. p 
 
 553. 
 Waller v. Harris, 20 Wend. 555. p 
 
 486. 
 Walsh V. Chicago etc. R. Co., 42 Wis
 
 TABLE OF CASES CITED. 
 
 Ixi 
 
 23; s. c. 9 Ch. Leg. N. 315. pp. 29, 
 
 68, 546. 
 Walsh V. Str. H. M. Wright, Newb. 
 
 Adm. 494. pp. 305, 311, 512, 518. 
 Walters v. Chicago etc. R. Co., 41 Iowa, 
 
 71. p. 293. 
 Walton V. Waterhouse, 2 Saund. 421 a, 
 
 note 2. p. 56. 
 Ward V. Central Park etc. R. Co., 42 
 
 How. Pr. 289. pp. 261, 445. 
 
 C 8 Hun, 498; 67 N. Y. 597. 
 Ward V. General Omnibus Co., 42 L. J. 
 
 (C. P.) 265; s. c. 28 L. T. (n. s.) 
 
 850 (affirming 21 Week. Rep. 358; 
 
 27 L. T. (N. 8.) 761). p. 370, 
 Ward V. North Haven, 43 Conn. 148. 
 
 p. 220. 
 Ward V. Railroad Co., 2 Abb. Pr. (n. 
 
 s.) 411. p. 252. 
 Ward V. Rich, 1 Vent. 103. p. 564. 
 Ward V. Smith, 11 Price, 19. p. 550. 
 Ward V. Vanderbilt, 4 Abb. App. Dec. 
 
 521. pp. 66, 432, 466, 567, 570. 
 Wardrobe v. California Stage .Co., 7 
 
 Cal. 118. p. 575. 
 
 c 57 Me. 256. 
 Ware v. Gay, 11 Pick. 106. pp. 114, 
 
 191, 211, 213, 548, 554. 
 
 c 47 Ind. 481; 8 Pa. St. 484; 38 Miss. 275; 4 
 Iowa, 55; 2 Mont. 5-26; 18 N. Y. 538; 4 Col. 10. 
 d 11 Allen, 217. 
 Waring v. Clark, 5 How. 441. p. 481. 
 
 cMcAll. 108; 1 Gin. Superior Ct. 55; 41 
 Ala. 63. 
 Warner v. Burlington etc. R. Co., 22 
 
 Iowa, 166. p. 522. 
 Warner v. New York etc. R. Co., 44 N. 
 
 Y. 465; s. c. 45 Barb. 299. p. 553. 
 
 c44 Ind. 80; 25 Mich. 282; 7 Jones & Sp. 
 ,350,352; 11 Hun, 219; 4 Jones & Sp. 448; 65 
 Uarb. 102; .50 How. Pr. 108; 38 Iowa, 517; 1 
 Bradw. 422; 8 Jones & Sp. 183. ? 65 Barb. 
 149. 
 Warren v. Fitchburg R. Co., 8 Allen, 
 
 227. p. 269. 
 
 c 2 Gray, 360; 30 Ohio St. 234, 237; 28 Mich. 
 455; 98 Mass. 204; 44 Miss. 4a5; 57 Barb. 651; 
 97 Mass. 368; 109 Mass. 405; 11 Allen, 505; 
 105 Mass. 78, 207; 34 N. Y. 27; 10 Allen, 532; 
 17 iMich. 120; 35 N. Y. 37; 100 Mass. 212, 215; 
 42 N. Y. 473; 104 Mass. 116, Itl; 29 Md. 439. 
 Washburn v. Nashville etc. R. Co. 3 
 
 Head, 638. pp. 44, 345. 
 
 Washington (The) and the Gregory, 9 
 
 Wall. 513. p. 475. 
 Waters v. Wing, 59 Pa. St. 211. p. 
 
 552. 
 
 c 72 Pa. St. 140, 141 ; 66 Pa. St. 33, 34. 
 Watson V. Ambergate etc. R. Co., 3 
 
 Eng. Law & Eq. 497. p. 428, 
 Watson V. Duykinck, 3 Johns. 335, pp, 
 
 467, 468, 
 Watson V. Northern R. Co., 24 Upper 
 
 Canada Q. B. 98. pp. 262, 331, 683. 
 
 c 58 Me. 194. 
 Way V. Illinois etc. R. Co., 40 Iowa, 
 
 341. p. 5.52. 
 
 c 38 Iowa, 102. 
 Wayne County Turnpike Co. v. Berry, 
 
 5 Ind. 286. p. 552, 
 
 c 17 Ind. 105; 42 Ind. 342; 26 Ind. 23, 
 Weaver v. Rome etc. R. Co., 3 N, Y. 
 
 S, C, (T. & C.) 270, pp, 338, 339, 
 
 376, 
 
 c 4 Hun, 219. d 6 Thomp. & 0. 498. 
 Webster v. Hudson River R. Co., 38 N. 
 
 Y. 260. pp. 283, 290, 294. 
 
 c 36 N. J. L. 228 ; 65 Barb. 155, 156 ; 66 N. T. 
 14; 64 N. Y. 147; 13 Hun, 88. 
 Weed V. Panama R. Co., 5 Duer, 193; 
 
 s. c. 17 N. Y. 362. pp. 68, 361, 364, 
 
 367. 
 
 c 3 Cliff. 427; 7 Bosw. 135; 11 Nev. 364; 36 
 Wis. 670, 671, 675; 3 Jones & Sp. 128; 20 N. Y. 
 50; 52 N. H. 604; 57 Me. 216, 235, 237; 6 Bosw, 
 703. 
 
 Weed V. Saratoga etc. R. Co., 19 Wend. 
 
 534. pp. 432, 511, 512, 538, 548, 554. 
 
 c36 Barb. 425; 30 N. Y. 611, 617, 621; 15 
 Mich. 127 ; 20 Pa. St. 503 ; 29 Barb. 56 ; 9 Lower 
 Canada, 178; 1 Newb. Adm. 496; 27 Vt. Ill; 24 
 N. Y. 278; 23 Vt. 210; 19 N. H. 339; 23 N. H. 
 284; 6 Lii. An. 545; 13 111. 750, 751; 31 Cal. 63; 
 6Cush. 73; 1 E. D. Smith, 97,99; 1 Hilt. 233. 
 ? 25 Md. 90. 
 Weeks v. New York etc. R. Co., 72 N. 
 
 Y. 56; s. c. 6 Reporter, 54; 17 Am. 
 
 L. Reg. (N. 8.) 506; 6 Cent, L. J. 
 
 201. pp. 303, 305, 518. 
 Weiss V. Pennsylvania R. Co., 79 Pa. 
 
 St. 387. 
 Welch V. Pullman etc. Co., 16 Abb, Pr. 
 
 (N. 8.) 352; s. c. 1 Buff. Superior Ct. 
 
 N. Y. 457; 4 Abb. N. C. 523. pp. t 
 
 518, .531, .532. 
 Welfare v. London etc. R. Co., L. R. 4
 
 Ixii 
 
 TABLE OF CASES CITED. 
 
 Q. B. 693 ; s. c. 38 L. J. (Q. B.) 241 ; 
 
 17 Week. Rep. 1065; 20 L. T. (n. S.) 
 
 743. pp. 104, 105. 
 Weller v. London etc. R. Co., L. R. 9 
 
 C. P. 126; s. c. 43 L. J. (C. P.) 137; 
 
 22 Week. Rep. 302 ; 29 L. T. (N. s.) 
 
 888. pp. 229, 231, 233, 268. 
 
 c 44 L. J. (Q. B.) 113; L R. 10 Q. B. 273; 71 
 N. Y. 493. 
 
 Welles V. New York etc. R. Co., 26 
 
 Barb. 641 ; s. c. 24 N. Y. 181 ; 25 N. 
 
 Y. 442; 6 Am. L. Reg. 713. pp. 383, 
 
 385, 400, 402. 
 
 c 32 N. J. L. 413; 34 N. J. L. 5]6; 25 N. Y. 
 444, 446, 453; 29 Barb. 610; 51 Pa. St. 326; 17 
 How. 364; 21 Ind. 51, 52; 28 N. J. L. 190; 39 
 Iowa, 254; 2 Cent. L. J. 367; 5 Bosw. 703. cl 
 29 Barb. 610, 611, 615. ? 37 lU. 505, 507 ; 41 
 Ala. 502; 51 Pa. St. 328; 47 Ind. 485; 20 Minn. 
 129. 
 Welsh V. Pittsburgh etc. R. Co., 10 
 
 Ohio St. 75. p. 387. 
 Wentz V. Erie R. Co., 5 Thomp. & C. 
 
 556; 3 Hun, 241. pp. 71, 376. 
 West V. Str. Uncle Sana, McAll. 510. 
 
 pp. 66, 466. 
 West Chester etc. R. Co. v. McElwee, 
 
 67Pa. St. 311. p. 562. 
 West Chester etc. R. Co. v. Miles, 55 
 
 Pa. St. 209. pp. 28, 346, 377. 
 
 e 55 111. 189 ; 95 U. S. 503. 
 Weston V. New York etc. R. Co., 10 
 
 Jones & Sp. 156; s. c. 3 Abb. N. C. 
 
 572. p. 110. 
 
 c 18 Alb. L. J. 70. 
 Western Union Tel. Co. v. Eyser, 91 
 
 U. S. 495, note. p. 575. 
 Weyland v. Elkins, Holt, 227; s. c. 
 
 sub nom. Waland v. Elkins, 1 Stark. 
 
 272. pp. 236, 237. 
 Whalen v. St. Louis etc. R. Co., 60 Mo. 
 
 323. pp. 234, 271, 571, 584. 
 Wheaton v. North Beach etc. R. Co., 
 
 36 Cal. 590. 
 
 C 2 Mont. 523. 
 
 Wheeler v. San Francisco etc. R. Co., 
 
 31 Cal. 46. pp. 28, 432. 
 Wheelock v. Boston etc. R. Co., 105 
 • Mass. 203. p. 270. 
 
 Whitaker v. Eighth Avenue R. Co., 51 
 
 N. Y. 295. p. 371. 
 
 Whitaker 17. Manchester etc. R. Co., L. 
 
 R. 5 C. P. 464, note. pp. 231, 268. 
 Whitall V. The William Henry, 4 La. 
 
 223. p. 357. 
 White V. Boulton, 1 Peake, 113. pp. 
 
 117, 199, 238, 481. 
 
 c 21 Md. 296, 301. cl 9 Metc. 7. 
 White V. McDonough, 3 Sawyer, 311. 
 
 p. 463. 
 Whitesell v. Crane, 8 Watts & S. 369. 
 
 pp. 526, 538. 
 Wliitesides v. Thurlkill, 12 Smed. & M. 
 
 599. p. 389. 
 Whitmore v. Steamboat Caroline, 20 
 
 Mo. 513. p. 511. 
 
 c 1 Mo. 60. 
 Whitney v. Clarendon, 18 Vt. 252. p. 
 
 564. 
 Whitton V. Chicago etc. R. Co., 25 
 
 Wis. 424. p. 544. 
 Wilcox V. The Philadelphia, 9 La. 84. 
 
 p. 519. 
 
 C 13 La. An. 455. 
 
 Wilcox V. Rome etc. R. Co., 39 N. Y. 
 
 358. p. 233. 
 Wilkie V. Bolster, 3 E. D. Smith, 327. 
 
 pp. 208, 211, 212. 
 
 C 2 Mont. 525 : 4 Col. 10. 
 
 Wilkinson v. Fairrie, 1 Hurl. & Colt. 
 
 633; s. c. 9 Jur. (n. s.) 280; 32 L. J. 
 
 (Exch.) 73; 7 L. T. (N. s.) 599. p. 
 
 87. 
 
 c 9 Am. L. Reg. (N. S.) 108; 35 L. J. (C. P.) 
 190; L. R. 1 C. P. 28S; 12 Jur. (N. S.) 434; 39 
 Iowa, 620; 55 How. Pr. 173. 
 Willetts V. Buffalo etc. R. Co., 14 Barb. 
 
 585. pp. 271, 293, 339, 376. 
 
 c 37 Mo. 548 ; 31 N. J. L. 393 ; 24 Md. 125 ; 10 
 Bosw. 33; 16 Abb. Pr. 349; 39 How. Pr. 416; 1 
 Keyes, 573 ; 33 How. Pr. 200 ; 2 .\bb. App. Dec. 
 382; 46 Barb. 270, 271; 22 Barb. 586; 66 Barb. 
 51; 60 N. Y. 333. 
 Williams v. Carwardine, 4 Barn & AdoL 
 
 621. p. 55. 
 Williams v. Great Western R. Co., 10 
 
 Exch. 15. p. 529. 
 Williams v. Keokuk etc. Packet Co., 3 
 
 Cent. L. J. 400. pp. 518, 529. 
 Williams v. Vanderbilt, 28 N. Y. 217; 
 
 s. c. 29 Barb. 491. pp. 66, 432, 466, 
 
 567. 
 
 C 4 Abb. App. Dec. 523 ; 77 N. C. 352.
 
 TABLE OF CASES CITED. 
 
 Ixiii 
 
 Williamson v. Grand Trunk R. Co., 17 
 
 Upper Canada C. P. 615. pp. 374, 
 
 570. 
 Willis V. Long Island R. Co., 32 Barb. 
 
 398 ; s. c. 34 N. Y. 670. pp. 67, 224, 
 
 259, 266. 
 
 c 36 N. y. 43; 8 Hun, 498; 67 N. Y. 597; 34 
 N. Y. 675 ; 100 Mass. 215 ; 19 Alb. L. J. 472. d 
 51 111. 498, 499. 
 
 Wilson V. Brett, 11 Mee. & W. 113. pp. 
 
 41, 178, 398, 574. 
 Wilson V. Chesapeake etc. R. Co., 21 
 
 Gratt. 654. pp. 432, 433, 436, 521, 
 
 527. 
 Wilson V. Grand Trunk R. Co., 56 Me. 
 
 60; s. c. 8 Am. L. Reg. (n. s.) 398. 
 
 pp. 510, 521, 522. 
 Wilson V. Hamilton, 4 Ohio St. 722. p. 
 
 387. 
 Wilson V. Newport Dock Co., 4 Hurl. & 
 
 Colt. 232; s. c. L. R. 1 Exch. 177; 12 
 
 Jur. (N. s.) 233. p. 565. 
 Wilson V. Northern Pacific R. Co. (Sup. 
 
 Ct. Minn. 1879), 10 Cent. L. J. 56. 
 
 p. 267. 
 Wilson V. Susquehanna Turnpike Co., 
 
 21 Barb. 68. p. 220. 
 Wilt V. Welsh, 6 Watts, 9. p. 542. 
 Wilton V. Atlantic etc. Nav. Co., 10 C- 
 
 B. (N. S.) 452 ; S.C.8 Jur. (x. s.) 232 ; 
 
 30 L. J. (C. P.) 369; 9 Week. Rep. 
 
 748; 4 L. T. (N. s.) 706. pp.471, 
 
 525. 
 Wilton V. Middlesex B. Co., 107 Mass. 
 
 108. pp. 44, 293, 345, 439, 440, 455. 
 (In full, p. 438.) 
 
 c 60 Mo. 416; 28 Ohio St. 31. 
 Winship v. Enfield, 42 N. H. 197. pp. 
 
 204, 220. 
 Winterbottom v. Wright, 10 Mee. & W. 
 
 109. p. 41. 
 
 e 11 Allen, 520; 8 El. & Bl. 1049, 1052; 17 
 Gratt. 239 ; 4 Gray, 102 ; 11 Hun, 357 ; 7 La. An. 
 324 ; L. K. 3 C. F. 496, 497 ; 37 L. .J. (C. P.) lU ; 
 .56 N. y. 127 ; 1 N. Y. S. C. (T. & C.) 454 ; 38 Pa. 
 St. 110; 55 N. Y. 612; 29 N. H. 35; 27 Vt. 377; 1 
 Phila. 157; 6 N. Y. 408; 42 Iowa, 2.50; 1 Hilt. 
 438, 443; 19 0. B. (N. S.) 238, 243; 11 Jur. (N. 
 s.) 675; 34 L. J. (0. P.) 297, 298; 15 N. Y. 450. 
 AVinters v. Hannibal etc. R. Co., 39 Mo. 
 
 468. pp. 259, 560, 571. 
 
 Winch V. Birkenhead etc. R. Co., 5 De 
 
 G. & Sm. 562; s. c. 6 Jur. 1035; 13 
 
 Eug. Law & Eq. 506. p. 418. 
 Withers v. North Kent R. Co., 27 L. J. 
 
 Exch. 417 ; s. c. at nisi prius, sub nom. 
 
 Withers v. Great Northern R. Co., 1 
 
 Post. & Fin. 165 ; 3 Hurl. & N. 969. 
 
 pp. 206, 207, 211, 219. 
 
 c 9 Jur. (N. S.) 341. 
 Witte V. Hague, 2 Dow. & Ry. 33. p. 
 
 222. 
 Wolf V. Summers, 2 Camp. 631. pp. 
 
 471, 524. 
 
 c 1 GUp. 190; 1 Hilt. 502; Abb. Adm. 5L 
 Woodard v. Eastern Counties R. Co., 
 
 7 Jur. (N. s.) 331 ; s. c. 30 L. J. (M. 
 
 C.) 126; 9 Week. Rep. 660; 4 L. T. 
 
 (N. s.) 336. pp. 69, 336. 
 Woods V. Devin, 13 111. 746. pp. 513, 
 
 520, 521. 
 
 c 22 111. 214, 281 ; 56 111. 217 ; 10 How. Pr. 
 333. 
 Woodward v. Aborn, 35 Me. 271. p. 
 
 220. 
 Woodward v. Booth, 7 Bam. & Cress. 
 
 301. p. 555. 
 Woodward v. Chicago etc. R. Co., 23 
 
 Wis. 400. p. 549. 
 
 c 29 Gratt. 439. 
 Woodward v. Washburn, 3 Denio, 369. 
 
 p. 547. 
 Wordsworth v. Willan, 5 Esp. 273. p. 
 
 237. 
 Wright V. Caldwell, 3 Mich. 51.' p. 471. 
 Wright V. Indianapolis etc. R. Co., 18 
 
 Ind. 168. p. 547. 
 Wright V. London etc. R. Co., L. R. 10 
 
 Q. B. 298; s. c. 1 Q. B. Div. 252. p. 
 
 106. 
 Wright V. Midland R. Co., 42 L. J. 
 
 (Exch.) 89; s. c. L. R. 8 Exch. 137; 
 
 21 Week. Rep. 460; 29 L. T. (x. s.) 
 
 436. pp. 416, 417. 
 
 c 44 L. J. (Exoh.) 137; 35 Upper Canada 
 Q B. 561. 
 
 Wright V. Pindar, Style, 34. p. 564. 
 Wright V. Wilcox, 19 Wend. 343. p. 
 
 358. 
 Wyatt V. Citizens' R. Co., 55 Mo. 485. 
 
 pp. 228, 268, 563. 
 
 c 2 Cent. L. J. 541 ; 59 Mo. 37.
 
 Ixiv 
 
 TABLE OF CASES CITED. 
 
 Wyborn v. Great Northern R. Co., 1 
 
 Fost. & Fin. 162. p. 206. 
 
 c 27 L. J. (Exch.) 419; 3 Hurl. & N. 972. 
 Wyld V. Pickford, 8 Mee. & W. 443 
 
 pp. 178, 389, 398. 
 Wylde V. Northern R. Co., 53 N. Y. 
 
 156. p. 437. 
 Wynn v. AUard, 5 Watts & S. 524. p. 
 
 271. 
 Wyman v. Penobscot etc. R. Co., 46 
 
 Me. 162. p. 418. 
 
 Y. 
 
 Yates V. Duff, 5 Car. & P. 369. p. 467. 
 Yeomans v. Contra Costa Steam Nav. 
 
 Co., 44 Cal. 71. pp. 45, 46, 463, 556. 
 
 c 2 Mont. 625 ; 49 Cal. 130 ; 46 Tex. 638. 
 York Co. V. Central R. Co., 3 Wall. 113. 
 
 p. 391. 
 Yonge V. Kinney, 28 Ga. 111. pp. 211, 
 
 660. 
 
 e 4 OoL 10. 
 
 Yonge V. Pacific Mail Steamship Co., 
 
 1 Cal. 353. pp. 568, 569. 
 Young V. Black, 7 Cranch, 568. p. 564. 
 Young V. Fewson, 8 Car. & P. 55. pp. 
 
 469, 555. 
 Yznaza Del Valle v. The Richmond, 27 
 
 La. An. 90. 
 
 z. 
 
 Zell V. Arnold, 2 Pa. St. 295. pp. 642, 
 
 543. 
 Zemp V. Wilmington etc. R. Co., 9 
 
 Rich. L. 84. pp. 212, 260, 330, 657, 
 
 562, 563. 
 Zenobia (The), Abb. Adm. 48. pp. 
 
 467, 570. 
 
 c 1 Woods, 412. 
 Zunz V. South-Eastem R. Co., 10 Best 
 
 & S. 594 ; s.c. L. R. 4 Q. B. 539. p. 526. 
 
 c 36 Upper Canada Q. B. 660; Irish £ep. 
 10 G. L. 66.
 
 CASES 
 
 ON THE LAW OF 
 
 CARRIERS OF PASSENGERS. 
 
 CHAPTEE I. 
 
 OF THE OBLIGATION TO RECEIVE AND CARRY. 
 
 Leading Cases: 
 
 1. Bennett v. Button. — General obligation to receive and 
 
 carry. 
 
 2. Vinto7i V. Middlesex Railroad Company. — Not bound to 
 
 carry drunken persons. 
 
 3. Thurston v. Union Pacific Railroad Company. — Not bound 
 
 to carry gamblers who seek to come on board to ply 
 their vocation. 
 
 4. Jencks v. Coleman. — Not bound to carry a drummer for 
 
 a rival line. 
 6. Pearson v. Buane. — Expulsion of a passenger exiled by 
 
 a vigilance committee. 
 6. O^Brien v. Boston and Worcester Railroad Company. — Not 
 
 bound to carry a person who has just been expelled for 
 
 good cause. 
 
 Notes: § 1. Who is a common carrier of passengers. 
 
 2. Duty of common carrier to receive and carry passengers. 
 
 3. What will excuse carrier from receiving and carrying 
 
 passeii"'('r. 
 
 4. Want of room will usually excuse. 
 
 5. Payment of fare. 
 
 6. Ejecting passengers who have been received. 
 
 1
 
 OBLIGATION TO RECEIVE AND CARRY. 
 
 Bennett v. Button. 
 
 1. GENERAL OBLIGATION TO RECEIVE AND CARRY. 
 
 Bennett v. Dutton.* 
 Superior Court of Judicature of New Hampshire, 1839. 
 
 Hon. Joel Parker, Chief Justice. 
 " Samuel Green, ] 
 " Nathan G. Upham, I Justices. 
 " Leonard Wilcox, J 
 
 1. Obligation of Common Carrier of Passengers to receive and carry. — The propri- 
 etors of a stage-coach who hold themselves out as common carriers of passengers are 
 bound to receive all who require a passage, so long as they have room and there is no 
 legal excuse for a refusal. It is not a lawful excuse that they run their coach in con- 
 nection with another coach, which extends the line 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. 
 
 9. Hefusal to carry Passenger who proposes to take Passage with a Hival 
 Connecting Line. — The defendant was one of the proprietors and the driver of a 
 stage-coach running daily between Amherst and Nashua which connected at the 
 latter place with another coach running between Nashua and Lowell, and thus formed 
 a continuous mail and passenger line from Lowell to Amherst and onward to Frances- 
 town. A third person ran a coach to and from Nashua and Lowell; and tlie defendant 
 agreed with the proprietor of the coach connecting with his line that he would not 
 receive passengers who came from Lowell to Nashua in the coach of such third person 
 on the same day they applied for a passage to places above Nashua. The plaintiff was 
 notified at Lowell of this arrangement, but notwithstanding came from Lowell to 
 Nashua in that coach and then demanded a passage in the defendant's coach to Am- 
 herst, tendering the regular fare. It was held that the defendant was bound to receive 
 him, there being sufficient room, and no evidence that the plaintiff was an unfit person 
 to be admitted, or that he had any design of injuring the defendant's business. 
 
 Case. The declaration alleged that the defendant was part owner 
 and the driver of a public stage-coach from Nashua to Amherst and 
 Francestown ; that on the 31st of January, 1837, the plaintiff applied 
 to him to be received into his coach at Nashua, and conveyed from 
 thence to Amherst, offering to pay the customary fare ; and that the 
 defendant, although there was room in his coach, refused to receive the 
 plaintiff. 
 
 It appeared in evidence that at the time of the grievance alleged 
 there were two rival lines of daily stages running between Lowell, in 
 Massachusetts, and Nashua ; that Jonathan B. French was the proprie- 
 tor of one of those lines, and Nelson Tuttle of the other ; that Tuttle's 
 line ran no farther than from Lowell to Nashua ; that French and the 
 proprietors of the defendant's line were interested in a contract for 
 
 * Reported 10 N. 11. 481.
 
 GENERAL NATURE OF THE OBLIGATION. 
 
 Superior Court of New Hampshire. 
 
 carrying the United States mail from Lowell to Francestown, through 
 Amherst (dividing the mail-money in proportion to the length of their 
 respective routes), so as to form one continuous mail route from Lowell 
 to Francestown; that French and the proprietors of the defendant's 
 line had agreed to run their respective coaches so as to form a continu- 
 ous line for passengers from Lowell, through Amherst, to Francestown, 
 and that their agents and drivers might engage seats for the whole dis- 
 tance at such rates of fare as they thought expedient, and the amount 
 thus received, in instances where they thought proper to receive less 
 than the regular fare, was to be divided between said proprietors in 
 proportion to the length of their respective routes ; that it was also 
 agreed that if the defendant's line brought down to Nashua an extra 
 number of passengers, French should see them through, and be at the 
 expense of furnishing extra coaches and horses, if necessary, to convey 
 them to Lowell, and, on the other hand, if French's line brought up an 
 extra number of passengers from Lowell to Nashua, the proprietors of 
 the defendant's line were to do the same for the conve3'^ance of such 
 passengers above Nashua ; and that it was further agreed (as Tuttle's line 
 ran no farther than from Lowell to Nashua) by the proprietors of the 
 'lefendant's line that they would not receive into their coaches, at 
 Nashua, passengers for places above Nashua who came up from Lowell 
 to Nashua on the same day in Tuttle's line, the time of starting from 
 Lowell and arriving at Nashua being the same in both lines. 
 
 One of the requisitions of mail contracts is that each line of stage- 
 coaches running into another so as to foim a continuous mail line shall 
 give preference to passengers arriving in the line with which it connects, 
 and shall forwai'd them in preference to any others. 
 . There were several other lines which started from Lowell at the same 
 time with the lines before mentioned, running to other places, through 
 Nashua; and it was generally the understanding between their respective 
 proprietors that one line should not take for a part of the distance, 
 where the route was the same, passengers who were going on furtlier 
 in another line : though this understanding had been occasionally inter- 
 rupted. 
 
 The plaintiff being at Lowell on the 31st of January, 1837, took 
 passage and was conveyed to Nasliua in Tuttle's line, and immediately' 
 on his arrival at Nashua applied to be received into the defendant's 
 coach, and tendered the amount of the regular fare. There was room 
 for the plaintiff to be conveyed to Amherst, but the defendant refused 
 to receive him. The plaintiff was notified by the agent for the line of 
 French and the defendant, at Lowell, pievious to taking passage in
 
 OBLIGATION TO RECEIVE AND CARRY. 
 
 Bennett v. Dutton. 
 
 Turtle's coach for Nashua, that if he wished to go from Nashua to 
 Amherst on that day in the regular mail line he must take the mail line 
 at Lowell, and that if he took passage in Tuttle's line from Lowell to 
 Nashua he would not be received at Nashua into the defendant's 
 coach. 
 
 The parties agreed that judgment should be rendered for the plain- 
 tiff for nominal damages, or for the defendant, according to the opinion 
 of this court upon these facts. 
 
 Clark and G. Y. Sawyer, for the plaintiff ; Baker, with C. G. AtJierton, 
 for the defendant. 
 
 Parker, C. J. — It is well settled that so long as a common carrier 
 has convenient room he is bound to receive and carry all goods which 
 are offered for transportation, of the sort he is accustomed to carry, if 
 they are brought at a reasonable time and in a suitable condition. ^ 
 And stage-coaches which transport goods as well as passengers are in 
 respect of such goods to be deemed common carriers, and responsible 
 accordingly.^ Carriers of passengers for hire are not responsible, in 
 all particulars, like common carriers of goods. They are not insurers 
 of personal safety against 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, dili- 
 gence, or skill. This results from the different nature of the case. 
 But in relation to the baggage of their passengers, the better opinion 
 seems to be that they are responsible like other common carriers of 
 goods. 
 
 And we are of opinion that the proprietors of a stage-coach for the 
 regular transportation of passengers for hire from place to place are, as 
 in the case of common carriers of goods, bound to take all passengers 
 who come, so long as they have convenient accommodations for their 
 safe carriage, unless there is a sufficient excuse for a refusal. ^ 
 
 The principle which requires common carriers of goods to take all 
 that are offered, under the limitations before suggested, seems well to 
 apply. 
 
 Like innkeepers, carriers of passengers are not bound to receive all 
 comers."* The character of the applicant, or his condition at the time, 
 may furnish just grounds for his exclusion. And his object at the time 
 may furnish a sufficient excuse for a refusal; as, if it be to commit 
 
 1 story on Bail. 328; RUey v. Home, 5 3 jencks v. Coleman, 2 Sumii. ^l, post, p. 
 Bing. 217. 11; Hollister v. Nowlen, 19 Wend. 239. 
 
 2 Story on Bail. 32.-,. 4 Markham v. Brown, 8 N. H. 523.
 
 GENERAL NATURE OF THE OBLIGATION. 
 
 Superior Court of New Hampshire. 
 
 an assault upon another passenger, or to injure the business of the 
 proprietors. 
 
 The case shows the defendant to have been a general carrier of 
 passengers for hire in his stage-coach from Nashua to Amherst at 
 the time of the plaintiff's application. It is admitted there was room in 
 the coach, and there is no evidence that he was an improper person to 
 be admitted, or that he came within any of the reasons of exclusion 
 before suggested. 
 
 It has been contended that the defendant was only a special carrier 
 of passengers, and did not hold himself out as a carrier of persons 
 generally ; but the facts do not seem to show a holding out for special 
 employment. He was one of the proprietors and the driver of a line 
 of stages from Nashua to Amherst and Francestown. They held 
 themselves out as general passenger carriers between those places. 
 But, by reason of their connection with French's line of stages from 
 Lowell to Nashua, they attempted to make an exception of persons who 
 came from Lowell to Nashua in Tattle's stage on the same day in which 
 they applied for a passage for the north. It is an attempt to limit their 
 responsibility in a particular case, or class of cases, on account of their 
 agreement with French. 
 
 It is further contended that the defendant and other proprietors had 
 a right to make rules for the regulation of their business, and among 
 them a rule that passengers from Lowell to Amherst and onward 
 should take French's stage at Lowell; and that by a notice brought 
 home to the individual, the general responsibility of the defendant, if it 
 existed, is limited. 
 
 But we are of opinion that the proprietors had no right to limit their 
 general responsibility in this manner. 
 
 It has been decided in New York that stage-coach proprietors are 
 answerable as common carriers for the baggage of passengers ; that 
 they cannot restrict their common-law liability by a general notice that 
 the baggage of passengers is at the risk of the owners ; and that if 
 a carrier can restrict his common-law liability, it can only be by an 
 express contract. ^ And this principle was applied, and the proprietors 
 held liable for the loss of a trunk, in a case where the passenger 
 stopped at a place where the stages were not changed, and he permitted 
 the stage to proceed without any inquiry for his baggage. ^ However 
 this may be, as there was room in the defendant's coach, he could not 
 have objected to take a passenger from Nashua, who applied there, 
 
 1 Hollister v. Nowlen, 19 Wend. 234. * Cole v. Goodwin, 19 Wend. 251.
 
 OBLIGATION TO RECEIVE AND CAKRY. 
 
 Vinton v. Middlesex Railroad Company. 
 
 merely because he belonged to some other town. That would furnish 
 no sufficient reason, and no rule or notice to that effect could limit his 
 dut3\ And there is as little legal reason to justify a refusal to take a 
 passenger from Nashua merely because he came to that place in a 
 particular conveyance. The defendant might well have desired that 
 passengers at Lowell should take French's line, because it connected 
 with his. But if he had himself been the proprietor of the stages from 
 Lowell to Nashua, he could have had no right to refuse to take a 
 passenger from Nashua merely because he did not see fit to come to 
 that place in his stage. It was not for him to inquire whether the plain- 
 tiff came to Nashua from one town or another, or by one conveyance 
 or another. That the plaintiff proposed to travel onward from that 
 place could not injuriously affect the defendant's business ; nor was the 
 plaintiff to be punished because he had come to Nashua in a particular 
 manner. 
 
 The defendant had good right, by an agreement with French, to give 
 a preference to the passengers who came in French's stage ; and as they 
 were carriers of the mail on the same route, it seems he was bound so 
 to do, without an agreement. If after the}' were accommodated there 
 was still room, he was bound to carry the plaintiff, without inquiring in 
 what line he came to Nashua. 
 
 Judgment for the plaintiff. 
 
 2. NOT BOUND TO CARRY DRUNKEN PERSONS. 
 
 Vinton v. Middlesex Railroad Company.* 
 Supreme Judicial Court of Massachusetts, 1865, 
 
 Hon. George T. Bigelow, Chief Justice. 
 *' Charles A. Dewey, 
 " Ebenezer R. Hoar, 
 
 " Reuben A. Chapman, \ Associate Justices. 
 " Horace Gray, Jr., 
 " James D. Colt, 
 
 Not bound to carry Drunken Persons. — The conductor ol a street railway car may 
 exclude or expel therefrom a person who by reason of intoxication or otherwise 
 is in such a condition as to render it reasonably certain that by act or speech he will 
 become offensive or annoying to other passengers therein, altliough he has not com- 
 mitted :!i\'. ;ict i>f offence or annoyance. 
 
 * Reported 11 Allen, 304.
 
 NOT BOUND TO CARRY DRUNKEN PERSONS. 
 
 Supreme Judicial Court of Massacliusetts. 
 
 Tort against a street railway corporation to recover damages for 
 the act of one of their conductors in expelling the plaintiff from a car 
 in which he was a passenger. 
 
 At the trial in the Superior Court, before Morton, J., it appeared 
 that the plaintiff was a passenger in one of the defendants' cars, and 
 was expelled by the conductor. There was no evidence that any rule 
 oi* regulation had ever been adopted by the defendants, authorizing 
 tlieir conductors to expel passengers for any cause. The defendants 
 introduced evidence tending to show that at the time of the expulsion 
 tlie plaintiff was intoxicated, and used loud, boisterous, profane, and 
 indecent language towards the conductor, and attempted to strike him, 
 and that he was therefore expelled. But the evidence on this point 
 •was conflicting. There were four women in the car as passengers. 
 
 The defendants requested the court to instruct the jury, amongst 
 other things, as follows: "If the jury find that the plaintiff was in 
 the defendants' car in a state of intoxication, so as reasonably to 
 induce the conductor to believe that the plaintiff would be an annoy- 
 ance to the passengers, or if the plaintiff so conducted, or used boister- 
 ous, profane, or indecent language, naturally calculated to annoy the 
 passengers, and persisted in so doing after being requested to be quiet, 
 the conductor would be justified in removing him, using no more 
 violence than was necessary to effect his removal." 
 
 The judge declined so to rule, and instructed the jury as follows: 
 '* If the plaintiff, by reason of intoxication or, otherwise, was in act or 
 language offensive or annoying to the passengers, the conductor had a 
 right to remove him, using reasonable force. If the conductor, in the 
 performance of his service as conductor, forcibly removed the plaintiff 
 without justifiable cause, or if, having justifiable cause, he used unnec- 
 essary and unreasonalile violence, in kind or degree, in removing him, 
 the defendants are liaiile." 
 
 The jury returned a verdict for the plaintiff, with $1,000 damages; 
 and the defendants alleged exceptions. 
 
 L. M. Child (L. Child with hira), for the defendants.— It is the 
 duty of the proprietors of steaml)oats and railroads, as common carriers 
 of passengers, to provide for the quiet and comfort of their passengers, 
 :uid to secure tliem from annoyance, fright, and terror resulting from 
 tlie misconduct of their servants or of other passengers. • The dis- 
 
 i The ComiTiotuveaUh v. Power, 7 Mete. 611; Pardee v. Drew, 25 Wenil. 459; Pickford 
 601 ; Jencks v Coleinan, 2 Sumn. 221, post, v. Grand Junction R. Co., 8 Mee. & W. 372; 
 |). 11 ; Camden etc. R. Co. v. Burke, 13 Wend. Ang. on Car., § 525.
 
 OBLIGATION TO RECEIVE AND CAREY. 
 
 Vinton v. Middlesex Railroad Company. 
 
 charge of this duty falls within the scope of the employment of the 
 conductor of a railroad car ; and if he has good reason to believe that 
 the other passengers cannot otherwise be secured from annoyance, he 
 may remove a passenger. 
 
 T. H. Siveetser and W. S. Gardner, for the plaintiff. — The conductor 
 of a car has no right to anticipate that one passenger will become an 
 annoyance to others. If there is no annoyance at the time, and the 
 passenger is conducting himself properly, he cannot be removed. In 
 this case, the defendants did not ask for an instruction that the plaintiff 
 might properly be put off the car if he annoyed the conductor, or if he 
 was intoxicated, but that if he was in a state of intoxication, so as 
 reasonably to induce the conductor to believe that he would be an 
 annoyance, he might be removed. But the conductor himself may have 
 been intoxicated. The ruling that was requested did not provide that 
 the jury should find that the conductor had reason tct believe that fact. 
 
 No regulations have been established by the defendants, and there- 
 fore a passenger agrees simply to behave in a decent and proper manner. 
 If he does so, he has a right to ride ; he has a license to enter the car, 
 and a right to stay there until he does something improper. If any- 
 body undertakes to exercise a judgment on this subject, he must be 
 sure to judge right. In this case the defendants ask that if the con- 
 ductor is afraid that a passenger will do something improper he may 
 expel him. If this rule is adopted, a laboring man, tired and sleepy, 
 may be ejected because the conductor thinks he is intoxicated. In 
 some of the cases cited, express rules of the carriers were violated. 
 
 BiGELOw, C. J. — By the instructions under which this case was sub- 
 mitted to the jury, in connection with the refusal of those which were 
 asked for by the defendants, we are led to infer that the learned judge 
 who presided at the trial was of opinion that the defendants and their 
 duly authorized agents had no legal power or authority to exclude or 
 expel from the vehicles under their charge a passenger whose condition 
 and conduct were such as to give a reasonable ground of belief that 
 his presence and continuance in the vehicle would create inconvenience 
 and disturbance, and cause discomfort and annoyance to other passen- 
 gers. Such certainly were the result and effect of the rule of law laid 
 down for the guidance of the jury at the trial. We are constrained to 
 say that we know of no warrant, either in principle or authority, for 
 putting any such limitation on the right and authority of the defendants 
 as common carriers of passengers, or of their servants acting within the 
 scope of their employment.
 
 NOT BOUND TO CARRY DRUNKEN PERSONS. 
 
 Supreme Judicial Court of Massachusetts. 
 
 It being conceded, as it must be under adjudicated cases, that the 
 defendants, as incident to the business which they carried on, not only 
 had the power but were bound to take all reasonable and proper means 
 to insure the safety and provide for the comfort and convenience of 
 passengers, it follows that they had a right, in the exercise of this 
 authority and duty, to repress and prohibit all disorderly conduct in 
 their vehicles, and to expel or exclude therefrom any person whose 
 conduct or condition was such as to render acts of imiKopriety, rude- 
 ness, indecency, or disturbance either inevitable or probable. Certainly 
 the conductor in charge of the vehicle was not bound to wait until some 
 overt act of violence, profaneness, or other misconduct had been com- 
 mitted, to the inconvenience or annoyance of other passengers, before 
 exercising his authority to exclude or expel the offender. The right 
 and power of the defendants and their servants to prevent the occur- 
 rence of improper and disorderly conduct in a public vehicle is quite 
 as essential and important as the authority to stop a disturbance or 
 repress acts of violence or breaches of decorum after the} have been 
 committed and the mischief of annoyance and disturbance has been 
 done. 
 
 Indeed if the rule laid down at the trial be correct, then it would 
 follow that passengers in public vehicles must be subjected to a certain 
 amount or degree of discomfort or insult from evil-disposed persons 
 before the right to expel them would accrue to a carrier or his servant. 
 There would be no authority to restrain or prevent profaneness, inde- 
 cency, or other breaches of decorum in speech or behavior, until it had 
 continued long enough to become manifest to the eyes or ears of other 
 passengers. It is obvious that any such restriction on the operation of 
 the rule of law would greatly diminish its practical value. Nor can we 
 see that there is any good reason for giving so narrow a scope to the 
 authority of carriers of passengers and their agents as was indicated in 
 the rulings at the trial. The only objection suggested is that it is 
 liable to abuse and may become the instrument of oppression. But the 
 same is true of many other salutary rules of law. The safeguard 
 against an unjust or unauthorized use of the power is to be found in 
 the consideration that it can never be properly exercised except in cases 
 where it can be satisfactorily proved that the condition or conduct of a 
 person was such as to render it reasonably certain that he would occasion 
 discomfort or annoyance to other passengers if he was admitted into a 
 public vehicle or allowed longer to remain within it. 
 
 Exceptions sustained.
 
 10 OBLIGATION TO KECEIVE AND CARRY. 
 
 Thurston v. Union Pacific Eailroad Company. 
 
 3. NOT BOUND TO CAREY GAMBLERS WHO SEEK TO COME ON 
 
 board to ply their vocation. 
 Thurston v. Union Pacific Railroad Company.* 
 
 ' United States Circuit Court, District of Nebraska, 1877.* 
 Hon. Elmer S. Dundy, District Judge. 
 
 'Carrier may refuse to carry Gamblers. — Gamblers and monte-men whose purpose in 
 travelling upon a railway ti-ain is to ply their vocation may be excluded. But if after 
 such a person has purchased a ticket the servants of the company refuse to receive 
 him on board the train, unless the company tender back the pricQ of the ticket he may 
 recover the same together with costs of suit. 
 
 It was alleged, and not denied, that the plaintiff had purchased from 
 the road, for fifty cents, a ticket for crossing the river on the transfer 
 train, and that when the train was about starting he attempted to board 
 it but was prevented. He also purchased, for ninety cents, from the 
 company a ticket good on another road, but was forcibly ejected from 
 the train, and obliged to remain in Omaha several days before he could 
 safely get away, for which he asked $5,000 damages. The defendant 
 admitted that the necessary force (but no more) was used to prevent 
 his entering the train. It was claimed that he had been for years a 
 notorious gambler, — a "monte-man," so called, — and was then en- 
 gaged in travelling on the defendant's road for the purpose of plying 
 that calling, and was about to enter the train for that purpose. This 
 the defendant denied. The question was whether the defendant had 
 the right to exclude gamblers from its trains. Upon this point the 
 charge of the court is given below. 
 
 John I. Bedick, for the plaintiff ; Mr. Poppleton and Mr. Wakely, for 
 the defendant. 
 
 Dundy, J. — The railway company is bound, as a common carrier, 
 when not overcrowded, to take all proper persons who may apply for 
 transportation over its line, on their complying with all reasonable rules 
 of the company. But it is not bound to carry all persons at all times, 
 or it might be utterly unable to protect itself from ruin. It would not 
 be obliged to carry one whose ostensible business might be to injure 
 the line ; one fleeing from justice ; one going upon the train to assault 
 a passenger, commit larceny or robbery, or for the purpose of inter- 
 fering with the proper regulations of the company, or for gambling in 
 any form, or committing any crime ; nor is it bound to carry persons 
 
 * Reported 4 Dill. 321.
 
 NOT BOUND TO CARRY GAMBLERS. 11 
 
 United States Circuit Court, Nebraska. 
 
 infected with contagious diseases, to the danger of other passengers. 
 The person must be upon lawful and legitimate business. HencS 
 defendant is not bound to carry persons who travel for the purpose 
 of gambling. As gambling is a crime under the State laws, it is not 
 even necessary for the company to have a rule against it. It is not 
 bound to furnish facilities for carrying out an unlawful purpose. Neces- 
 sary force may be used to prevent gamblers from entering trains ; and 
 if found on them engaged in gambling, and refusing to desist, they 
 may be forcibl}- expelled. 
 
 Whether the plaintiff was going upon the train for gambling purposes, 
 or whether from his previous course the defendant might reasonably 
 infer that such was his purpose, is a question of fact for the jury. If 
 they find such to have been the case, they cannot give judgment for 
 any more than the actual damage sustained. 
 
 After the ticket is purchased and paid for, the railroad company can 
 only avoid compliance with its part of the contract by the existence of 
 some legal cause or condition which will excuse it. The company 
 should, in the first case, refuse to sell tickets to persons whom it 
 desires and has the right to exclude from the cars, and should exclude 
 tiiem if they attempt to enter the car without tickets. If the ticket has 
 been inadvertently sold to such person, and the company desires to 
 rescind the contract for transportation, it should tender the return of the 
 money paid for the ticket. If it does not do this, plaintiff may, under 
 any circumstances, recover the amount of his actual damage, viz., what 
 he paid for the ticket, and perhaps necessary expenses of his detention. 
 
 In this case the jury rendered a verdict for actual damages ($1.74) 
 and costs, the company not having tendered the money. 
 
 Judgment on verdict. 
 
 4. NOT BOUND TO CARRY A DRUMMER FOR A RIVAL LINE. 
 
 Jencks V. Coleman.* 
 Circuit Court of the United Stdtes, Rhode Island, 1835. 
 
 Hon. Joseph Story, Associate Justice of the Supreme Court. 
 " .John Pitmax, District Judge. 
 
 1. No Obligation to carry a Drummer for a Rival Line. — Whilst the proprietors 
 of a steamboat carrying passengers for hire are bound as common ca.tTier», i( they 
 
 * Reported 2 Sumn. 221.
 
 12 OBLIGATION TO RECEIVE AND CARRY. 
 
 Jencks v. Coleman. 
 
 have suitable accommodations, to receive on board and carry all persons to whose 
 character and conduct there is no reasonable objection, yet they are under no obliga- 
 tion to receive and carry one who seeks to come on board for the purpose of soliciting 
 patronage for a rival line. 
 
 2. Case in Judgment. — The plaintiff was the known agent of the Treraont line of stage- 
 coaches; the proprietors of the steamboat Benjamin Franklin had, as he well knew, 
 entered into a contract with the Citizens' Stage-Coach Company to carry passengers 
 • between Boston and Providence in connection with and to meet the steamboats. The 
 plaintiff had been in the habit of coming on board the steamboat at Providence and 
 Newport for the pui'pose of soliciting passengers for the Tremont line. It was held that 
 if the jury should be of opinion that the above contract was reasonable and bond fide, 
 and not entered into for the purpose of an oppressive monopoly, and that the exclusion 
 of the plaintiff was a reasonable regulation in order to carry this contract into effect, 
 the proprietors of the steamboat would be justified in refusing to take the plaintiff on 
 board. 
 
 Case, for refusing to take the plaintiff on board of the steamboat 
 Benjamin Franklin (of which the defendant was commander) as a 
 passenger from Providence to Newport. Plea, the general issue. 
 
 The facts, as they appeared at the trial, were substantialh' as follows : 
 That the plaintiff was the agent of the Tremont line of stages running 
 between Providence and Boston ; that his object was to take passage in 
 the boat to Newport, and then go on board the steamboat President, 
 on her passage from New York to Providence, on the next morning, for 
 the purpose of soliciting passengers for the Tremont line of stages for 
 Boston. This the proprietors of the President and Benjamin Franklin 
 had prohibited, and had given notice that they would not permit agents 
 of that line of stages to take passage in their boats for that purpose. 
 The reason assigned for such prohibition was that it was important for 
 the proprietors of the steamboats that the passengers from their boats 
 for Boston should find at all times, on their arrival at Pro%idence, 
 an immediate and expeditious passage to Boston. To insure this 
 object, the Citizens' Coach Company had contracted with the steamboat 
 proprietors to carry all the passengers who wished to go, in good 
 carriages at reasonable expedition and prices ; and the commanders 
 of the steamboats were to receive the fare and make out way-bills of 
 the passengers for the Citizens' Coach Company. This they continued 
 to perform. And in order to counteract the effect of this contract, 
 which had been offered the Tremont line and declined, that line 
 placed an agent on board the boats to solicit passengers for their 
 coaches ; and on being complained to by the Citizens' Coach Company, 
 the proprietors of the steamboats interdicted such agents from coming 
 on board their boats, and in this instance refused to permit the 
 plaintiff to take passage in the boat for Newport though he tendered 
 the customary fare.
 
 NOT BOUND TO CARRY RIVAL DRUMMERS. 13 
 
 United States Circuit Court, Rhode Island. 
 
 The cause was argued by R. W. Greene and Daniel Webster for the 
 plaintiff, and by Rivers and Whipple for the defendants. 
 
 For the plaintiff, it was contended that steamboat proprietors were 
 common carriers, and every person conducting himself with propriety 
 had a right to be carried unless he had forfeited that right. The 
 plaintiff, in this instance, did conduct himself with propriety, and had 
 not forfeited his right to be carried, by any improper misconduct. The 
 steamboat proprietors and Citizens' Coach Company had attempted to 
 estabUsh a monopoly, which should not be countenanced, it being 
 against the public interest. Such a monopoly operated to increase the 
 price and prolong the time of passage from Providence to Boston ; 
 while open competition promoted the public interest and convenience, 
 by reducing the fare and expediting the passage. The plaintiff, in this 
 instance, requested to be conveyed from Providence to Newport ; during 
 which passage, it was well known, no passengers were to be solicited, — 
 that was to be done onl}' on the passage from Newport to Providence. 
 For the defendant, it was contended that the contract made by the 
 steamboat proprietors and the Citizens' Company was legal, and 
 subserved the public convenience and the interests of the proprietors 
 of the boats and stages ; it insured to the passengers expeditious 
 passages at reasonable prices ; that the regulation excluding the agents 
 of the Tremont line of stages from the steamboats was legal and just, 
 because it was necessary to promote the foregoing objects, to wit, the 
 public convenience and the interests of the proprietors of both the 
 l)oats and stages. Of this interdiction the plaintiff had received 
 notice, and had no legal right to complain. 
 
 Story, J., in summing up to the jur}^ after recapitulating the evi- 
 dence, said : There is no doubt that this steamboat is a common carrier 
 of passengers for hire ; and therefore the defendant, as commander, was 
 bound to take the plaintiff as a passenger on board, if he had suitable 
 accommodations and there was no reasonable objection to the character 
 or conduct of the plaintiff. The question, then, really resolves itself 
 into the mere consideration whether there was in the present case, 
 upon the facts, a reasonable ground for the refusal. The right of 
 passengers to a passage on board of a steamboat is not an unlimited 
 right. But it is subject to such reasonable regulations as the proprietors 
 may prescribe, for the due accommodation of passengers and for the 
 due arrangements of their business. The proprietors have not only 
 this right, but the further right to consult and provide for their own 
 interests in the management of such boats, as a common incident to
 
 14 OBLIGATION TO RECEIVE AND CARRY. 
 
 Jencks v. Coleman. 
 
 theii- right of property. They are not bound to admit passengers on 
 board who refuse to obey the reasonable regulations of the boat, or 
 who are guilty of gross and vulgar habits of conduct ; or who make 
 disturbances on board ; or whose characters are doubtful, or dissolute, 
 or suspicious ; and, a fortiori, whose characters are unequivocally bad. 
 Nor are they bound to admit passengers on board whose object it is to 
 interfere with the interests or patronage of the proprietors, so as to 
 make the business less lucrative to them. 
 
 While, therefore, I agree that steamboat proprietors, holding them- 
 selves out as common carriers, are bound to receive passengers on board 
 under ordinary circumstances, I at the same time insist that they 
 may refuse to receive them if there be a reasonable objection. And 
 as passengers are bound to obey the orders and regulations of the 
 proprietors, unless they are oppressive and grossly unreasonable, who- 
 ever goes on board, under ordinary circumstances, impliedly contracts 
 to obey such regulations, and may justly be refused a passage if he 
 wilfully resists or violates them. 
 
 Now, what are the circumstances of the present case? Jencks (the 
 plaintiff) was at the time the known agent of the Tremont line of stage- 
 coaches. The proprietors of the Benjamin Franklin had, as he well 
 knew, entered into a contract with the owners of another line (the Citi- 
 zens' Stage- Coach Company) to bring passengers from Boston to 
 Providence, and to carry passengers from Providence to Boston, in 
 connection with and to meet the steamboats plying between New York 
 and Providence and belonging to the proprietors of the Franklin. Such 
 a contract was important, if not indispensable, to secure uniformity, 
 punctuality, and certainty in the carriage of passengers on both routes, 
 and might be material to the interests of the proprietors of those steam- 
 boats. Jencks had been in the habit of coming on board these steam- 
 boats at Providence and going therein to Newport ; and commonly of 
 coming on board at Newport and going to Providence, avowedly for 
 the purpose of soliciting passengers for the Tremont line, and thus 
 interfering with the patronage intended to be secured to the Citizens' 
 line by the arrangements made with the steamboat proprietors. He 
 had the fullest notice that the steamboat proprietors had forbidden any 
 person to come on board for such purposes, as incompatible with their 
 interests. At the time when he came on board as in the declaration 
 mentioned, there was every reason to presume that he w^as on board for 
 his ordinary purposes as agent. It has been said that the proprietors 
 had no right to inquire into his intent or motives. I cannot admit that
 
 NOT BOUND TO CARRY RIVAL DRUMMERS. IS' 
 
 United States Circuit Court, Rhode Island. 
 
 point. I think that the proprietors had a right to inquire into such 
 intent and motives, and to act uppn the reasonable presumptions which 
 arose in regard to them. Suppose a known or suspected thief were to 
 come on board, would they not have a right to refuse him a passage? 
 Might they not justly act upon the presumption that his object was 
 unlawful? Suppose a person were to come on board who was habitu- 
 ally drunk, and gross in his behavior and obscene in his language, so 
 as to be a public annoyance, might not the proprietors refuse to allow 
 him a passage? I think they might, upon the just presumption of what 
 his conduct would be. 
 
 It has been said by the learned counsel for the plaintiff that Jencks 
 was going from Providence to Newport, and not coming back ; and that, 
 in going down, there would, from the very nature of the object, be no 
 solicitation for passengers. That does not necessarily follow ; for he 
 might be engaged in making preliminary engagements for the return of 
 some of them back again. But supposing there were no such solic- 
 itations, actual or intended, I do not think the case is essentially 
 changed. I think that the proprietors of the steamboats were not 
 bound to take a passenger from Providence to Newport whose object ' 
 was, as a stationed agent of the Tremont line, thereby to acquire facil- 
 ities to enable him successfully to interfere with the interests of these 
 proprietors, or to do them an injury in their business. Let us take the 
 case of a ferryman. Is he bound to carry a passenger across a ferry, 
 whose object it is to commit a trespass upon his lands ? A case still more 
 strongly in point, and which, in my judgment, completely meets the pres- 
 ent, is that of an innkeeper. Suppose passengers are accustomed to 
 breakfast, or dine, or sup, at his house, and an agent is employed by a 
 rival house, at the distance of a few miles, to decoy the passengers 
 away the moment they arrive at the inn ; is the innkeeper bound to 
 entertain and lodge such agent, and thereby enable him to accomplish 
 the very objects of his mission, to the injury or ruin of his own interests? 
 I think not. 
 
 It has been also said that the steamboat proprietors are bound to 
 carry passengers only between Providence and New York, and not to 
 transport them to Boston. Be it so, that they are not absolutely bound. 
 Yet they have a right to make a contract for this latter purpose, if they 
 clioose ; and especially if it will facilitate transportation of passengers, 
 and increase the patronage of their steamboats. I do not say that they 
 have a right to act oppressively in such cases. But certainly they may 
 in good faith make such contracts, to promote their own as well as the 
 pubUc interests.
 
 16 OBLIGATION TO RECEIVE AND CARRY. 
 
 Jencks v. Coleman. 
 
 The only real question, then, in the present case, is whether the con. 
 duct of the steamboat proprietors has been reasonable and bond fide. 
 The}^ have entered into a contract with the Citizens' line of coaches 
 to carry all their passengers to and from Boston. Is this contract reason- 
 able in itself, and not designed to create an oppressive and mischievous 
 monopoly? There is no pretence to say that any passenger is bound to 
 go to or from Boston in the Citizens' line. He may act as he pleases. 
 It has been said by the learned counsel for the plaintiff that free com- 
 petition is best for the public. But that is not the question here. Men 
 may reasonably differ from each other on that point. Neither is the 
 question here whether the contract with the Citizens' line was indis- 
 pensable, or absolutely necessary, in order to insure the carriage of the 
 passengers to and from Boston. But the true question is whether the 
 contract is reasonable and proper in itself, and entered into with good 
 faith, and not for the purpose of an oppressive monopoly. If the jury 
 find the contract to be reasonable and proper in itself, and not oppres- 
 sive, and they believe the purpose of Jencks in going on board was to 
 accompHsh the objects of his agency, and in violation of the reasonable 
 regulations of the steamboat proprietors, then their verdict ought to be 
 for the defendant ; otherwise, for the plaintiff. 
 
 Webster, for the plaintiff, then requested the court to charge that 
 " the jury must be satisfied that this agreement was necessary or clearly 
 expedient for the public interest and the interest of the proprietors of 
 the boats, or otherwise the captain of the boat could not enforce it 
 by refusing the plaintiff a passage ; or, that the defendant must 
 show that the substantial interest of the proprietors, or of the public, 
 required an arrangement such as that they entered into, in order to jus- 
 tify their refusal to carry the plaintiff for the cause assigned." 
 
 The court refused to give instruction in the manner and form as 
 prayed ; but did instruct the jury that it is not necessary for the de- 
 fendant to prove that the contract in the case was necessary to accom- 
 plish the objects therein stated, but it is sufficient if it was entered 
 into by the steamboat proprietors bond fide, and purely for the purpose 
 of their own interest and the accommodation of the public, from their 
 belief of its necessity or its utility. If the jury should be of opinion 
 that under all the circumstances of the case it was a reasonable con- 
 tract, and the exclusion of the plaintiff was a reasonable and proper 
 regulation to carry it into effect on the part of the steamboat proprie- 
 tors, then their verdict ought to be in favor of the defendant ; otherwise, 
 in favor of the plaintiff. 
 
 Verdict for defendant.
 
 Associate Justices. 
 
 PASSENGER EXILED BY VIGILANCE COMMITTEE. 17 
 
 Quantum of Damages. 
 
 5. EXPULSION OF PASSENGER EXILED BY VIGILANCE COMMITTEE. 
 
 Pearson v. Duane.* 
 
 Supreme Court of the United States, 1866. 
 
 Hon. Salmon Portland Chase, Chief Justice. 
 
 " James M. Wayne, 
 
 ** Robert Cooper Grier, 
 
 " Noah H. Swayne, 
 
 " David Davis, 
 
 " Samuel Nelson, 
 
 " Nathan 'Clifford, 
 
 " Samuel F. Miller, 
 
 " Stephen J. Field, 
 
 1. Kefasal of Ship-master to carry Passenger. — The llbellant was expelled from 
 
 the city of San Francisco by a Vigilance Committee, and was forcibly put on board 
 an outgoing steamer and landed at the Mexican port of Acapulco. With the deter- 
 mination of returning to San Francisco in defiance of the Vigilance Committee, he 
 got on board a steamer destined for that port, of which the respondent was master. 
 After the steamer had put to sea, his identity and the fact of his exi)ulsion from San 
 Francisco were discovered, and the respondent, with a view of preventing him from 
 aeturning to San Francisco, believing that he would be killed by the Vigilance Com- 
 mittee if he returned, put him on board another steamer, which again landed liira 
 at Acapulco. It was held that, having been permitted to go upon the respondent's 
 vessel without objection, and having tendered his fare and otherwise demeaned him- 
 self properly, the respondent could not lawfully refuse to carry him, and that he was 
 entitled to recover damages; although it seems that the respondent might have 
 refused to receive him on board the ship before it sailed. 
 
 2. Quantum of Damages. — Under such circumstances, it was held that the libellant 
 
 was entitled to recover only such damages as might be reasonably supposed to have 
 flowed immediately from the act of the respondent in expelling him from his vessel, 
 and not those remote damages which grew out of his subsequent wanderings and 
 sutferings. Accordingly an award of $4,000 damages made by the court below was 
 reduced to $50. 
 
 In the month of June, 1856, the steamship Stevens, a common carrier 
 of passengers, of which Pearson was master, on her regular voyage 
 from Panama to San Francisco, arrived at the intermediate port of 
 Acapulco, where Duane got on board with the intention of proceeding 
 to San Francisco. He had shortly before this been banished from 
 tliat city by a revolutionary yet powerful and organized body of men, 
 called "The Vigilance Committee of San Francisco," upon penalty of 
 death in case of return. This committee had, in the forepart of June, 
 against his will, placed him on the Golden Age, a steamer in the harbor 
 
 • Reported 4 Wall. 605.
 
 18 OBLIGATION TO RECEIVE AND CARRY. 
 
 Pearson v. Duane. 
 
 of San Francisco destined for Panama, with directions that he should 
 be conveyed beyond the limits of California; and he was forcibly 
 carried to the Mexican port of Acapulco. The presence of the Stevens 
 afforded the first opportunity to get back, which he was anxious to 
 embrace, being willing to encounter the risk to which his return might 
 expose him. Duane went openly on the boat, at the public gangway, 
 and talked freely with some of the officers and passengers. It is not 
 certain that the master knew of his being aboard until after the ship go' 
 to sea, but no directions had been given for his exclusion ; and 
 although he was without a ticket, or money to buy one, yet a passengei 
 who had the means offered to pay the purser his fare, who declined 
 receiving it. 
 
 It was usual for those persons who wished to secure a passage to 
 procure a ticket at Acapulco, but there was no imperative rule of the 
 si lip requiring it, and the customary fare was often paid to the purser 
 after the boat had left the port. 
 
 There was no evidence that Duane would have been excluded had the 
 master been aware that he was on board before he left Acapulco, for it 
 was quite clear that the circumstances of his banishment were unknown 
 at that time. 
 
 The master, Pearson, was aware that the Vigilance Committee were 
 in control of San Francisco, and ascertained in some way that Duane 
 had been expelled by them from California, and if he returned would 
 be in danger of losing his life. Having learned this, he resolved to put 
 Duane aboard the first ship he met, and send him back to Acapulco. 
 The steamer Sonora, commanded by Capt. Whiting, and one of the 
 same line of steamers of which Pearson was master, very soon came in 
 sight and was stopped. Whiting informed Pearson that he had orders 
 not to carry back any banished person, and that Duane would certainly 
 he executed if he returned, and advised that he should be sent to the 
 Sonora, and he would endeavor to persuade him to go on witli him. 
 
 Thereupon Duane was transferred to the Sonora, and landed at 
 Acapulco. The transfer was effected without any personal indignit}'- to 
 Duane, who at first resisted, but was induced to yield to superior force 
 by friendly counsels. 
 
 Duane did not retuin to California until the month of February, 
 1860. The Vigilance Committee no longer existed ; and he then filed a 
 libel in admiralty for damages, in the District Court of the Northern 
 District there, setting forth essentially the facts above stated ; that 
 having been expelled as he was from the Stevens, all efforts to get 
 aboard vessels going to San Francisco were unavailing ; that he went
 
 PASSENGER EXILED BY VIGILANCE COMMITTEE. 19 
 
 Supreme Court of the United States. 
 
 thence to Aspinwall, in the Republic of New Grenada, to try and get 
 passage thence to San Francisco, but that a Une of steamers previously 
 existing there, and on which he expected to go, had been discontinued, 
 its last vessel having set off two or three days before his arrival ; that 
 finally, through charity, he obtained a*passage to New York, in which 
 city he was without money or means, his character and reputation 
 blasted, and himself a dependent on chai-ity for subsistence ; and was 
 for several months confined in the hospital there, ph^'sically unable to 
 attempt the voyage to San Francisco until February, 1860. 
 
 By the twelfth article of his libel, he assigned as a reason for delay in 
 bringing his action the state of things in San Francisco, the numerous 
 executions there by the Vigilance Committee, and his own belief that if 
 he returned his life would be put in jeopardy, — a belief which, he 
 alleged, "existed up to the time of his departure from New York to 
 Cahfornia." 
 
 The answer, besides a defence from lapse of time, asserted that the 
 libellant was not " a good or law-abiding citizen of San Francisco; " 
 and that he had " secretly, and without any right or authority so to do, 
 got on board of the Stevens, and remained secreted on board as a stow- 
 away ; " and that the defendant, in sending the libellant back on the 
 Sonora, had been influenced by humane motives. 
 
 The District Court decreed in favor of Duane, with $4,000 damages ; 
 a decree affirmed in the Circuit Court. Appeal. 
 
 Messrs. Lyon and Alexander Hamilton, Jr. , for the appellant ; Mr. 
 Ashton, for the appellee. 
 
 Mr. Justice Davis delivered the opinion of the court. — This case is 
 interesting, because of certain novel views which this court is asked 
 to sustain. Two questions arise in it: First, "Was the conduct of 
 Pearson justifiable ? Second, If not, what should be the proper 
 measure of damages? It is contended, as the life of Duane was in 
 imminent peril in case of his return to San Francisco, that Pearson 
 was justified, in order to save it, in excluding him from his boat, not- 
 withstanding Duane was willing to take his chances of being hanged by 
 the Vigilance Committee. Such a motive is certain!}^ commendable for 
 its humanity, and goes very far to excuse the transaction, but does not 
 justify it. Common carriers of passengers, like the steamship Stevens, 
 are obliged to carry all passengers who apply for passage, if the accom- 
 modations are sufficient, unless there is a proper excuse for refusal.^ 
 
 1 Jencks v. Coleman, 2 Sumn. 221, ante, p. 11 ; Bennett v. Button, 10 N. H. 486, ante, p. 2.
 
 20 OBLIGATION TO RECEIVE AND CARRY. 
 
 Pearson v. Duane. 
 
 If there are reasonable objections to a proposed passenger, the car- 
 rier is not required to take him. In this case, Duane could have been 
 well refused a passage when he first came on board the boat, if the cir- 
 cumstances of his banishment would, in the opinion of the master, have 
 tended to promote further difficulty should he be returned to a city 
 wliere lawless violence was supreme. 
 
 But this refusal should have preceded the sailing of the ship. After 
 the ship had got to sea it was too late to take exceptions to the char- 
 acter of a passenger, or to his peculiar position, provided he violated no 
 inflexible rule of the boat in getting on board. This was not done ; and 
 the defence that Duane was a " stowaway," and therefore subject to 
 expulsion at any time, is a mere pretence, for the evidence is tlear that 
 he made no attempt to secrete himself until advised of his intended 
 transfer to the Sonora. Although a railroad or steamboat company can 
 properly refuse to transport a drunken or insane man, or one whose 
 character ^s bad, they cannot expel him after having admitted him as a 
 passenger ^nd received his fare, unless he misbehaves during the 
 journey. 1 Duane conducted himself properly on the boat until his 
 expulsion was determined, and when his fare was tendered to the 
 purser he was entitled to the same rights as other passengers. The 
 refusal to carry him was contrar}' to law, although the reason for it was 
 a humane one. The apprehended danger mitigates the act, but affords 
 no legal justification for it. 
 
 But the sum of $4,000 awarded as damages, in this case, is exces- 
 sive, bearing no proportion to the injury received. Duane is entitled 
 to compensation for the injury done him by being put on board the 
 Sonora, so far as that injury arose from the act of Pearson in putting 
 him there. But the outrages which he suffered at the hands of the 
 Vigilance Committee, his forcible abduction from California and trans- 
 portation to Acapulco, the difficulties experienced in getting to New 
 York, and his inability to procure a passage from either Acapulco or 
 Panama to San Francisco, cannot be compensated in this action. The 
 obstructions he met with in returning to California were wholly due to 
 the circumstances surrounding him, and were not caused by Pearson. 
 Every one, doubtless, to whom he applied for passage knew the power 
 
 I Coppin r. Braithwaite, 8 Jur. 875. [This Island R. Co., 43 N. Y. 502; s. c 67 Barb. 
 language would seem to be open to criti- 555, and a late case of the Supreme Judi- 
 cium. See Vintou v. Middlesex etc. R. Co., cial Court of Massachusetts, — Linnehan v. 
 11 Allen, 304, ante, p. 6. Compare also the Sampson, 126 Mass. 506, ». c. 8 Cent. L. J. 
 
 principle of the decision in Eckert u. Long 442. —Ed.]
 
 PASSENGER EXILED BY VIGILANCE COMMITTEE. 21 
 
 Supreme Court of the United States. 
 
 of the Vigilance Committee, and were afraid to encounter it by return- 
 ing an exile against whom the sentence of death had been pronounced. 
 Pearson had no malice or ill-will towards Daane; and, as the evidence 
 clearly shows, excluded him from his boat in the fear that if returned 
 to San Francisco he would be put to death. It was sheer madness for 
 Duane to seek to go back there. Common prudence required that he 
 should wait until the violence of the storm blew over and law and 
 order were restored. 
 
 This course he finally pursued, and he did not return to California 
 until February, 1860. If he believed when expelled from the Stevens 
 that Pearson had done him a great wrong, he certainly did not when he 
 filed the libel in this case, for the twelfth article is as follows: "That 
 when libellant was so banished from the State of California as afore- 
 said by the said Vigilance Committee, he was threatened with the penalty 
 of death should he ever return to said State ; that libellant was aware 
 that said committee had caused to be executed a number of persons, 
 without color or warrant of law or right, and that the said committee 
 had the power and ability to put in execution their threats, and libellant 
 beheved, and had reason to believe, from the conduct of said R. H. 
 Pearson as aforesaid, and the treatment he received from the hands of 
 said Vigilance Committee, and their threats as aforesaid, which were well 
 known to said Pearson, that should he return to said State his return, if 
 attempted or if successful, would be impeded and I'esisted, and his life 
 put in peril and jeopardy, which belief existed up to the time of his 
 departure from New York to California." This is the sworn statement 
 of Duane, that his life was in peril if he returned to California at an 
 earlier day ; for the conduct of Pearson to which he refers was predi- 
 cated on a corresponding belief. It is true this article in the libel was 
 introduced by way of excuse for not having sooner brought the suit, 
 but the admissions in it are proper evidence for all purposes. If so, it 
 is clear that the legal injury which Duane suffered at the hands of 
 Pearson can be compensated by a small amount of money. On a 
 review of the whole case, we are of opinion that the damages should 
 be I'educed to $50. 
 
 It is ordered that this cause be remitted to the Circuit Court for the 
 District of California, with directions to enter a decree in favor of the 
 appellee for $50. It is further ordered that each party pay his own 
 costs in this court. 
 
 Order accordingly.
 
 22 OBLIGATION TO RECEIVE AND CAUKY 
 
 O'Brien v. Boston and Worcester Railroad Company. 
 
 ti. NOT BOUND TO CAREY PERSON WHO HAS JUST BEEN EXPELLED 
 FOR GOOD CAUSE. 
 
 O'Brien v. Boston and Worcester Eailroad Company.* 
 Supreme Judicial Court of Massachusetts^ 1860, 
 
 Hon. Lemuel Shaw, Chief Justice. 
 " Chari.es A. Dewey, ~j 
 " Theron Metcalf, I 
 " George T. Bigelow, {- Associate Justices, 
 *' Pliny Merrick, 
 " Ebenezer R. Hoar, 
 
 1. No Duty to carry Passenger who has been rightfully ejected from the Train. — 
 
 A passenger who has been rightfully ejected from a railway train cannot by again 
 reentering the cars and tendei-ing the fare acquire a right to be carried. 
 
 2. Hegxilation concerning the Ejection of Persons who refuse to pay Fare. — A 
 
 regulation by a railway company requiring conductors to eject from the cars persons 
 who refuse to pay their fares, and not to accept their fare after such ejection if oflFered 
 at that time or after the cars have been stopped, is, under the Revised Statutes of 
 Massachusetts, chap. 39, sect. 83, a proper regulation ; and in an action for damages by 
 a person who has been properly ejected for refusing to pay his fare, and who ha- 
 immediately gone upon the same train and offered to pay his fare, and has been ejected 
 a second time, it is error to exclude evidence of such a regulation. 
 
 Action op tort against a railroad corporation and their conductor 
 for ejecting tlie plaintiff from their cars. 
 
 At the ti'ial in the Court of Common Pleas in Middlesex, at Decem- 
 ber term, 1858, before Sanger, J., the evidence tended to show that 
 the plaintiff bought at Cardaville a passenger's ticket to Brighton, 
 and also a return ticket from Brighton to Cardaville ; that he went to 
 Brighton on the train, and thence to Boston ; that in the afternoon of 
 the same day he entered the defendants' cars at Boston as a passenger, 
 intending to go to Cardaville, and took his seat ; that before the train 
 reached Brighton, the conductor, in the due course of his duty, in 
 taking the tickets of the passengers and collecting their fares, came to 
 the plaintiff, who up to this time had conducted himself properl}^ and 
 asked him for his ticket ; that the plaintiff handed him the return 
 ticket which he had purchased as above stated, and the conductor said 
 that it was not good. The testimony of what followed was conflicting. 
 The plaintiff contended that the evidence showed that when the con- 
 
 • Reported 15 Gray, 20.
 
 PASSENGER WHO HAS BEEN EXPELLED. 23 
 
 Supreme Judicial Court of Massachusetts. 
 
 ductor objected to the ticket, the plaintiff offered to pay his fare 
 either from Boston to Brighton or the whole distance from Boston to 
 Cardaville, before the bell was rung to stop the cars or any attempt 
 was made to eject him from them ; that he made the same offer after 
 the bell was rung and before he was ejected ; but that the conductor 
 refused to receive the fare and forcibly ejected him. The defendants 
 contended that the evidence showed that the conductor demanded the 
 fare either from Boston to Brighton, or, if the plaintiff preferred so to 
 pay, from Boston to Cardaville ; that the plaintiff at first refused to 
 pay any thing ; that upon his persisting in his refusal to pay the fare, 
 the conductor rang the bell and stopped the cars ; that after the bell 
 had been rung for stopping the cars, and before and after the cars were 
 stopped, the plaintiff offered to pay the demanded fare, but the con- 
 ductor refused to receive it, and forcibly ejected the plaintiff from the 
 car and put him down on the railroad track. It appeared that the 
 train had been stopped only for the purpose of ejecting the plaintiff ; 
 that the conductor gave the signal for the cars to start and proceeded 
 in his duty of collecting the fares, and the cars started on ; that the 
 plaintiff went to the rear car and got upon it ; that the conductor was 
 immediately informed that the plaintiff had got into that car, and at 
 once went to it, and although the plaintiff, before any attempt was made 
 to stop the cars a second time, offered to pay whatever fare the con- 
 ductor should demand, the conductor refused to receive it, stopped the 
 cars, and forcibly ejected the plaintiff a second time. 
 
 The defendants offered to show that, by the regulations of the 
 corporation, conductors were to eject persons who refused to pay their 
 fare, and after such ejection were not to accept their fare at that time 
 if offered after the cars had been stopped. But the judge rejected the 
 evidence. 
 
 The judge instructed the jury that, as there was no question but that 
 the plaintiff was obliged to pay his fare from Boston to Brighton, the 
 conductor, after demanding the fare and waiting a reasonable time for 
 the plaintiff to pay, had a right, on the plaintiff's refusal to pay, to ring 
 the bell to stop the cars for the purpose of ejecting him ; but after the 
 bell was thus rung, any offer or tender of the fare, not accepted by the 
 conductor, was made too late ; and that, notwithstanding such offer or 
 tender of fare, the conductor had a right to stop the cars and eject the 
 plaintiff therefrom, using no more force than was necessary for the 
 purpose. 
 
 In regard to the second ejection, the jury were instructed that the 
 agents of the corporation might, using only such force as was necessary.
 
 24 OBLIGATION TO RECEIVE AND CARRY. 
 
 O'Brien v. Boston and Worcester Eailroad Company. 
 
 eject from their cars any passenger who wrongly refused to pay his fare, 
 which was properly demandable, and which had been demanded in a 
 proper manner ; that after so ejecting hifii they could stay by, if they 
 pleased, and prevent him from entering the cars again at that time 
 and place ; that the passenger thus properly ejected was not thereby 
 forever incapacitated from riding in the cars of the corporation, but 
 might, if he conducted himself properly, and paid his fare, or tendered 
 it seasonably, ride in a subsequent train on another day or on the same 
 day ; or if the ejection was near a station, and if, after the ejection, 
 for any reason, the train, having reached that station, was delayed there 
 until the passenger came up, he might enter the cars there, and be car- 
 ried if he conducted himself properly ; and so if after the ejection the 
 cars should move on and for any reason become stationary, and the 
 ejected passenger should overtake them, and enter them without objec- 
 tion, he might continue therein if he conducted himself properly and 
 paid his fare or seasonably offered to pay it ; that it might be difficult 
 to fix the point of time, as a matter of fact, how soon after the ejection 
 the ejected passenger might reenter the ears with the right and privi- 
 lege of ordinary passengers, but it would be when the transaction of 
 the ejection was completely terminated ; that when that ended a new 
 state of things began, and it was for the jury to find upon all the proof 
 whether the transaction of the ejection was terminated before the plain- 
 tiff reentered the cars ; that unless it was so terminated the plaintiff 
 could not recover any damages for the second ejection, if they should 
 find the first ejection to have been lawfully made ; and if it was so ter- 
 minated (and the burden of proof was upon the plaintiff to establish the 
 fact by a preponderance of the proof), and the plaintiff entered the cars 
 without objection, although without an}^ express permission, and although 
 it was immediately after the ejection and on the same train, and not at 
 any station or customary stopping-place, he was rightfully there ; and, 
 conducting himself properly and paying his fare, or seasonably offering 
 to pay his fare, he had a right to be carried, and could recover damages 
 for his ejection. 
 
 The jury found the first ejection justifiable, the second unjustifiable, 
 and rendered a verdict for the plaintiff for $150. The defendants 
 alleged exceptions. 
 
 G. S. Hale, for the defendants ; A. B. Underwood, for the plaintiff. 
 
 BiGELow, J, — The correctness of the instructions given to the jury 
 in this case can be readily ascertained by considering the nature of the 
 contract entered into between the plaintiff and the defendants, and the 
 respective rights and duties of the parties under it. On entering the
 
 PASSENGER WHO HAS BEEN EXPELLED. 25 
 
 Supreme Judicial Court of Massachusetts. 
 
 cars of the defendants at Boston, the plaintiff had a right to be carried 
 thence to his place of destination in that train on paying the usual rale 
 of fare. This fare he was bound to pay according to the regulations 
 of the company, or on a reasonable demand being made therefor. If 
 he failed to do so, then his rights \inder the contract ceased ; he had 
 forfeited them by his own act ; and, having himself first broken the 
 contract, he could not insist on its fulfilment by the defendants. This 
 is the rule of common law. It is also expressly enacted in Stats. 1849, 
 c. 191, § 2, that no person who shall not, upon demand, first pay the 
 established toll or fare shall be entitled to be transported over a railroad. 
 The defendants, therefore, were not bound to transport him farther, but 
 were justified in ejecting him from the cars by the use of all lawful and 
 proper means. ^ Nor could he regain his right to ask of the defendants 
 to perform their contract by his offer to pay the fare after his ejec- 
 tion. They were not bound to accept performance after a breach. 
 The right to demand the complete execution of the contract by tlie 
 defendants was defeated by the refusal of the plaintiff to do that which 
 was either a condition precedent or a concurrent consideration on his 
 part, and the non-performance of which absolved the defendants of all 
 obligation to fulfil the contract. After being rightfully expelled from 
 the train, he could not again enter the same cars, and require the 
 defendants to perform the same contract which he had previously 
 broken. The right to refuse to transport the plaintiff farther, and to 
 eject him from the train, would be an idle and useless exercise of legal 
 authority if the party who had hitherto refused to perform the contract 
 by paying his fare when duly demanded could immediately reenter 
 the cars and claim the fulfilment of the original contract by the defend- 
 ants. Besides, the defendants are not bound to receive passengers at 
 any part of their route, but only at the regular stations or appointed 
 places on the line of the road, estal>lished by them at reasonal)le dis- 
 tances for the proper accommodation of the public. ^ Tiie plaintiff 
 had therefore no right to enter the cars at the place where the train 
 was stopped for the purpose of ejecting him. A person who had com- 
 mitted no breach of contract could not claim any such right ; a fortiori 
 the plaintiff could not. It follows that, on the facts stated in the 
 exceptions, the plaintiff proved no just claim for damages against the 
 defendants, and the instructions given to the jury, under which the 
 verdict was rendered, were clearly erroneous. 
 
 ' Ang. on Car., §§ 525, 609; Redf. on Eys. ^ Ang. on Car., § 527 a; Murch v. Concord 
 
 26, 261 ; Stephen v. Smith, 29 Vt. 160. R. Co., 29 N. H. 39.
 
 26 OBLIGATION TO RECEIVE AND CAKRY. 
 
 Notes. 
 
 The court also erred in rejecting the evidence of the regulations 
 established by the defendants concerning passengers who refused to 
 paj' their fare. The right to establish all needful and proper regulations 
 is vested in the defendants by law ; i and they should have been per- 
 mitted to prove them, as part of th*eir justification. 
 
 Exceptions sustained. 
 
 NOTES. 
 
 § 1. Who is a Common Carrier of Passengers. — A common carrier of pas- 
 sengers is one who undertakes for liire to carry all persons indifferently who may 
 apply for passage. To constitute one a common carrier it is necessary that he 
 should hold himself out as such. This may be done not only by advertising, but 
 by actually engaging in the business and pursuing the occupation as an employ- 
 ment. Railroad companies, the owners of ships, steamboats, ferries, omnibuses, 
 street cars, and stage-coaches, are usually common carriers of passengers.^ The 
 common carrier may transport his passengers only within the limits of a town, 
 as the owner of an omnibus or other vehicle plying between a railroad depot 
 and a hotel,* or street cars running upon a line whose terminal points are within 
 the limits of the same city; or he may carry between adjacent or remote 
 cities in the same country; * or the place to which he holds himself out to carry 
 his passengers may be in a foreign country. ° The passenger's destination is 
 immaterial in deciding whether the carrier is a common carrier of passengers or 
 whether he is a private or special carrier. The carrier may be both a common 
 carrier of passengers and a common carrier of goods, by the same conveyance and 
 at the same time. And he may also make reasonable rules by which he carries 
 goods in one conveyance and passengers in another, in which case he is a com- 
 mon carrier of passengers or of goods only in the respective conveyances which 
 he has assigned to those purposes. Thus, in the case of railroad companies: if 
 as a general rule they confine the transportation of goods to what are called 
 freight trains, and the conveyance of passengers to regular passenger trainsi 
 they are common carriers of goods as to the former, and of passengers as to 
 the latter. Yet they may by usage or practice become common carriers of 
 goods on passenger trains and common carriers of passengers on freight trains, 
 although these trains may be used mainly for the purposes for which they 
 were originally intended. Thus, if they are in the habit of carrying passengers 
 for hire, such as emigrants, or drovers, or any other class of persons, upon 
 
 ' Rev. stats., chap. 39, §83; The Common- 3 Brod. &B.54; s. c. 9 Price, 408; HoUister v. 
 wealth r. Power, 7 Mete. 602. Nowlen, 19 Wend. 234; Bennett v. Duttou, 
 
 Nashville etc. R. Co. v. Messino,! Sneed, 10 N. H. 481, ante, p. 2; Lovett v. Hobbs, 2 
 
 220; Hanley v. Harlem B. Co., 1 Edm. 359 
 Peixotti V. McLaughlin, 1 Strobh. L. 468 
 Slimmer v. Merry, 23 Iowa, 90; Richards v. 
 
 Show. 127. 
 
 3 Parmelee v. Lowitz, 74 111. 116. 
 * Richards v. Westcott, 2 Bosw. 589. 
 
 Westcott, 2 Bosw. 589 ; Jencks v. Coleman, 2 5 Benett v. Peninsular etc. Steamboat Co., 
 
 Sumn. 221, anU, p. 11; Bielhuiion v. Wood, 6 C. B. 775.
 
 WHO IS A COMMON CARRIER OF PASSENGERS. 27 
 
 Free Passengers — Contractors, etc. 
 
 freiglit trains, they become common carriers of that class of passengers by 
 freight trains, and thereby assume the liabilities of common carriers indiffer- 
 ■ently both of persons and propei'ty by such trains. i 
 
 The admission to a railroad train, although payment is received for the pas- 
 senger's carriage, will not of itself make those operating the ti'ain, and who 
 receive the pay, common carriers. Thus, in a case where the defendants, who 
 wer-e contractors for building a railroad, were running a construction-train to 
 which was attached a caboose-car, in which the men connected with the train 
 liad their "sleeping-bunks" and wherein the tools used by those engaged in 
 tlie construction of the railroad were stored, and in which car persons were 
 sometimes carried, although the contractors did not wish to carry passen- 
 gers, who sometimes were charged fare, but not always, and the conductor 
 of the train received on board of the caboose-car a person who paid his fare 
 for the distance he wished to ride, and while being carried was injured by 
 the car being thrown off the track, it was held that the defendants were not 
 general carriers of passengers any more than they were common carriers of 
 goods. They were but contractors to build a road. The caiTiage of anybody or 
 any thiug was neither their principal and direct business nor an occasional and 
 incidental employment.'' In another case where the person injured was being 
 carried on a construction-train, the railroad company was held to sustain the 
 relation of common carrier towards him.^ If, however, a passenger is received 
 on board of a train in the usual way, which to all appearances is owned by a 
 common carrier of passengers, and is treated by the agents of the company 
 ns a passenger, it will devolve upon the company to show that it is not a 
 common carrier. Thus, in an action for an injury to a passenger upon a railroad 
 I rain, there was evidence tending to show that the defendant company was duly 
 organized and incorporated and its road constructed and put in operation, and 
 that trains were being run and business transacted upon it, and men being em- 
 ployed to keep it in repair ; that on the day of the accident which occasioned the 
 injury the plaintiff purchased a ticket at a station on a connecting road to a station 
 on. the defendant's road, and that after the train reached the defendant's road 
 the conductor recognized the plaintiff's ticket as entitling him to a ride over the 
 road, taking up the ticket in the usual way and allowing him to pi'oceed without 
 objection, soon after which the injui-y was received. It was held that this evidence 
 made out a primd, facie case that the defendant was a common carrier operating 
 its road, and that it had undertaken to transport the plaintiff over it; and that in 
 t he absence of any proof by the defendant that the road was not its road and 
 was not being operated in the usual way of operating railroads, which proof 
 would be peculiarly within the defendant's knowledge, the jury would be fully 
 justified in finding that issue in the afflrmative.* But a railroad company cannot 
 assume the position of a common carrier towards a person's baggage who 
 refuses to occupy the relation of passenger towards it. Thus, where a person 
 went with his baggage to a train, and the baggage-master refused to check it 
 until he had purchased his tickets, and thereupon he went to procure tickets, 
 and while he was gone the baggage-master weighed his baggage, and on his 
 
 ' Flinn v. I'hila. etc. R. Co., 1 Houst. (Del.) 3 Nashville etc. U. Co. v. Mcssino, 1 Sneed, 
 
 469. 220. 
 
 - Shoemaker v. Kingsbury, 12 Wall. 369. * Bixby v. Montpelier etc. R. Co., 49 Vt. 123.
 
 28 OBLIGATION TO RECEIVE AND CARRY. 
 
 Notes. 
 
 return clemanded pay for the overweight of the baggage, which the person 
 refused to pay and demanded the return of his baggage, but on account of 
 it being covered up by other baggage in the car where it had been placed 
 the baggage-master refused to return it to him or give him his checks, and 
 the baggage was carried on the train to the place to which the passenger intended 
 to have it checked, but the owner did not go, and after its arrival it was burned, 
 it was held that the railroad company did not sustain the relation of a common 
 carrier towards the plaintiff and his trunks, the plaintiff having refused to occupy 
 towards the defendant the position of passenger. ^ The Commissioners of Emi- 
 gration in the city of New York are not by virtue of their duties common 
 carriers of emigrants or their baggage arriving there. - 
 
 § 2. Duty of Common Carrier to receive and carry Passengers. — A distin- 
 guishing feature of common carriers of passengers, as differing from private or 
 special carriers of the same, is the duty generally to receive and transport all 
 persons who apply for passage. They are regarded by law as if they were in the 
 public service, and this duty is imposed from the public nature of their emploj^- 
 ment. There is an implied obligation on their part not to refuse to receive and 
 carry persons who offer themselves as passengers. All persons, in a general 
 sense, are equal before the law, and the common carrier owes this general duty 
 to the whole public. This obligation is not based upon the express contract of 
 carriage, although it may be modified and limited by it, but it is wholly inde- 
 pendent of any contract.' It is closely analogous to the duty of innkeepers ta 
 receive all guests who may apply for accommodations. And the same general 
 principles of law apply in respect to this duty of common carriers of passengers- 
 as apply to the duty of innkeepers to receive all who come. Of course we speak 
 only of the general duty of the common carrier. He is not bound to carry an 
 improper person, or to carry a passenger to a place to which he does not hold 
 himself out as a carrier. And the common carrier may make reasonable rules 
 respecting the reception and carriage of passengers, which may sensibly abridge 
 the general duty as above stated. He is not bound to carry all persons at all 
 times ; but he may not discriminate between persons whom he will carry, unless 
 such discrimination is based upon a reasonable rule or for good cause.* 
 
 §3. What -will excuse Carrier from receiving and carrsang Passenger. — 
 While it is the duty of the carrier to receive all proper persons who apply for 
 transportation, so long as he has room, on their complying with all reasonable 
 
 1 McCormicki?. Pa. etc. R. Co.,49N. Y.303. 293; Sanford v. Catawissa etc. R. Co., 3 Phila. 
 
 * Murphy v. Commissioners of Emigra- 107; Day t;. Owen, 5 Mich. 520; West Chester 
 tion, 28 N. Y. 134; Semler v. Commissioners etc. R. Co. t;. Miles, 55 Pa. St. 209; Bennett 
 of Emigration, 1 Hilt. 244. v. Dutton, 10 N. H. 4S1, ante, p. 2. If a rail- 
 
 3 Saltonstall v. Stockton, 1 Taney's Dec. road company holds itself out as a common 
 
 11, 19 (affirmed, sub nom. Stokes v. Salton- carrier to a point beyond the termination 
 
 stall, 13 Pet. 181) ; Hannibal R. R. v. Swift, 12 of its road, then it is a common carrier for 
 
 Wall. 263,270; Tarbell v. Central Pacific R. the whole distance; and if it professes to 
 
 Co., 34 Cal. 616; Bretherton V. Wood, 3 Brod. contract and does contract with persons 
 
 & B. 54; Pleasants r. North Beach etc. R. generally to carry them the entire distance, 
 
 Co., 34 Cal. 586; Turner v. North Beach etc. it must treat all alike and contract with and 
 
 B. Co., 34 Cal. 594. carry all who apply. Wheeler v. San Fran- 
 
 * Indianapolis etc. R. Co. v. Riuard, 46 Ind. Cisco etc. B. Co., 31 CaJ. 46.
 
 What will excuse refusal to carry. 29 
 
 Want of Room — Non-payment of Fare. 
 
 rules of the carrier, he is not obliged to carry one Avhose ostensible purpose is to 
 Injure the carrier's business, i one fleeing from justice, one going upon a train to 
 assault a passenger, commit larceny or robbery, or for interfering with the proper 
 regulations of the company, or for gambling, or committing any crime ; nor is he 
 bound to carry a person who on account of his drunken condition would be 
 obnoxious to passengers, nor one affected with a contagious disease." Nor is the 
 carrier bound to carry passengers on Sunday.* 
 
 § 4. Want of Room will usually excuse. — Generally speaking, the want of ade- 
 •quate accommodations to transport passengers will excuse the failure to receive 
 them on the part of the carrier, — as, where there is an unexpected increase in the 
 number of those applying for passage, or where the reception of more would 
 incommode those who have already taken passage.* And the mere purchase of a 
 ticket for a railway journey does not impose an absolute duty upon the part of the 
 company to transport the passenger at the time he was led to expect he might go.^ 
 But it has been held that where a railroad company has issued a ticket stipu- 
 lating to run trains in a certain manner, within a certain time, it cannot excuse 
 itself from transporting a purchaser of such a ticket at the time he applies for 
 passage, within the terms of the ticket, or at a reasonable time thereafter, on 
 the ground that there is no room for him on the train.® And while the carrier is 
 not bound to receive an unusual number of passengers, beyond the number he 
 might reasonably be required to provide for, if he does receive them, without 
 condition, or notice of his inability to provide for them, he assumes all the obliga- 
 tions usually incumbent on such carriers.' 
 
 § 5. Payment of Fare. — This duty to receive and carry all who apply for 
 passage presupposes that the carrier is to be paid for his services in transport- 
 ing the persons who make application. Therefore a person who has been 
 deprived of his rights by the violation of this public duty on the part of the 
 carrier must show that he was ready and willing to pay the lawful fare at the 
 time the carrier refused to receive him. It is not necessary that the passen- 
 ger should make a strictly legal tender of his fare.^ But it has been held that 
 where it becomes necessary to stop a railroad train in order to eject a passenger 
 for not paying his fare, he cannot claim to be immediately readmitted to the 
 train upon a tender of his fare. If one passenger might by his unjustifiable 
 bumor cause the cars to stop, another might do the same thing, and thus the 
 utmost irregularity in the running of the train might be produced, jeopardizing 
 the safety of the company's property and the lives of all on board. After having 
 
 1 Jencks v. Coleman, 2 Sumn. 221, ante, p. ^ Hurst v. Great Western R. Co., 19 C. B. 
 11; The D. R. Martin, 11 Blatchf. 233. (N. S.) 310; s. c 11 Jur. (N. S.) 730. 
 
 2 Thurston v. Union Paoifio R. Co., 4 Dill. <> Hawcroft v. Great Northern R. Co., 8 
 321, ante, p. 10; Pittsburgh etc. R. Co. v. Van- Eng. Law & Eq. 362; s. c. 16 Jur. 196; post, 
 dyne, 57 Ind. 576 ; Pittsljurgh etc. R. Co. v. p. 59. 
 
 Pillow, 76 Pa. St. 510. See also Arnold v. Illi- ' Evansville etc. K. Co. v. Duncan, 28 Ind. 
 
 nois etc. R. Co., 83 111. 273 ; Vinton v. Middle- 441. 
 
 sex R. Co., 11 Allen, 304, ante, p. 6. » Tarbell v. Central Pacific R. Co., 34 Cal. 
 
 ■^ Walsh V. Chicago etc. R. Co., 42 Wis. 23. 616; Day v. Owen, 5 Mich. 520; Nashville etc. 
 
 « The Pacific, 1 Blatchf. 569 ; Jencks v. R. Co. v. Messino, 1 Sneed, 220. 
 •Coleman. 2 Sumn. 221, ante, p. 11.
 
 30 OBLIGATION TO RECEIVE AND CARRY. 
 
 Notes. 
 
 forfeited his right to remain upon the train, it is for the company's agents 
 to say whether he may be readmitted after having occasioned the inconvenience 
 of a stoppage.' 
 
 § 6. Ejecting Passengers ■who have been received. — It may be stated as a 
 proposition of law that the carrier may for good cause exclude a passenger. 
 But if he does receive him knowing that a good cause exists for his exclusion, 
 he cannot afterwards eject him for the same cause. The carriei cannot refuse 
 to pei-form the contract of carriage, and plead in justification tacts which he 
 Ivuew existed at the time the contract was made. But there are cases that go 
 further than this. They seem to hold that when the passenger Is received and 
 the journey is begun the carrier must be held to have consented to the passen- 
 ger's being carried to his destination,.notwithstanding that a reason exists which 
 would have been sufficient in law to justify the passenger's excluision, but which 
 was unknown to the carrier, at the time the passenger was received. Thus, in 
 a case in the United States Supreme Court,'' where a person whom the master 
 would have been justified in refusing to receive as a passenger had he been 
 aware at the time of certain facts in regard to him, got on board of a vessel, and 
 after the vessel was at sea the master became aware of these facts, and trans- 
 ferred the person to another vessel, which returned him to the place where he 
 embarked, it was held that, while he would have been justified in refusing to 
 receive him in the first instance, it was too late after the ship had got to sea to 
 take exceptions to the character of the passenger or to his peculiar position, 
 provided he violated no inflexible rule of the boat in getting on board. Again, 
 in a California case,'^ where a person got on a train, and after the train had pro- 
 ceeded five miles on its way the conductor demanded his fai'e, which the person 
 tendered in legal-tender currency, and the couductor ejected him because he 
 would not pay his fare in coin, the then current money in that State, the court 
 said : '* Whether the defendant could have legally exacted payment in coin before 
 the plaintiff was admitted into the cars and the journey commenced is a ques- 
 tion not involved in this case, and upon which we express no opinion. Having- 
 received the plaintiff, and proceeded several miles upon the journey, the defend- 
 ant must be held to have consented to receive in payment of the fare any good 
 and lawful money which the plaintiff might tender when called upon for payment. 
 The kind of money had then ceased to be an open question, for the contract wa» 
 already made and in process of performance.''^ We allude to this subject farther 
 on, but we here want to say that we do not regard these cases as stating sound 
 law in so far as they hold that the contract of carriage is made simply by the 
 passenger getting on board the conveyance and it beginning its trip. There 
 must be a union of minds, a mutual assent, by the parties, to form a contract. 
 If reasons exist unknown to the carrier which would have absolved him from 
 the implied public duty of transporting the passenger, can it be said that the 
 passenger may by concealing the facts until the carriage is begun invest the 
 carrier with this duty, thus profiting by his own wrong? 
 
 1 Nelson V. Long Island R. Co., 7 Hun, 140; « Pearson v. Duane, 4 Wall. 605, ante, p. 
 
 The People u. Jillson, 3 Park. Cr. 2U ; Hibbard 17. 
 
 V. New York etc. R. Co., 15 N. Y. 455; O'Brien 3 TarbeU v. Central Pacific R. Co., 34 CaL. 
 
 ..V. Boston etc. R. Co., 15 Gray, 20, ante, p. 22. 616, 623.
 
 CHAPTER II. 
 
 WHEN THE RELATION OF CARRIER AND PASSENGER 
 
 SUBSISTS. 
 
 Leading Cases: 1. Philadelphia and Reading Bailroad Company v. Derby. — 
 Injury to passenger who rides free — Respondeat supe- 
 rior — Sei'viint acting against orders. 
 2. Noltun V. Wtstarn Railroad Corporation. — Injury to mail 
 agent upon railway train. 
 
 Notes: § 1. Tlie relation of carrier and passenger arises how. 
 
 2. Consummation of the contract not necessary. 
 
 3. Persons riding gratuitously. 
 
 4. What constitutes gi'atuitous carriage. 
 
 6. Persons carrying on business on the carrier's vehicles or 
 vessels. 
 
 6. Employees of the carrier. 
 
 7. Persons attending passengers arriving or departing. 
 
 8. Passengers temporarily absent from conveyance, etc. 
 
 9. Evidence as to who is a passenger — Burden of proof — 
 
 Employee's pass — Evidence to show tliat the train is 
 a passenger train. 
 10. Persons employed on private car — Slaves carried for hire. 
 
 1. mJUEY TO PASSENGER WHO RIDES FREE — RESPONDEAT SUPE- 
 RIOR—SERVANT ACTING AGAINST ORDERS. 
 
 Philadelphia and Reading Railroad Company v, Derby.* 
 
 Supreme Court of the United States, 1852. 
 
 Hon. Roger B. Taney, Chief Justice. 
 
 " John McLean, 
 
 " James M. Wayne, 
 
 " John Catron, 
 
 *• Peter V. Daniel, } Associate Justices. 
 
 " Samuel Nelson, 
 
 " Robert C. Grier, 
 
 " Benjamin R. Curtis, 
 
 1. Injury to Passenger who rides free. — To an action by a person for an Injury received 
 by him while travelling upon a railwiiy train, by reason of the negligence ot the eer- 
 
 ■ Reported, 14 How. 468. 
 
 (81)
 
 S2 WHEN KELATION OF CARRIER AND PASSENGER SUBSISTS. 
 Philadelphia and Reading Railroad Company v. Derby. 
 
 vants of the railway company, it Is no defence that he was not a passenger for hire 
 but that he was travelling gratuitously by invitation of the president of the defendant 
 company, he himself being a shareholder therein; the governing principle being that 
 the confidence induced by undertaking any service for another is a sufficient legal 
 consideration to create a duty in the performance of it. 
 
 ■2. Respondeat Superior. — Xor is it a defence that the negligent act of the servant of the 
 defendant which caused the injury was done contrary to express orders received from 
 his superiors. 
 
 St. George T. Campbell and Fisher, for the plaintiffs ; Wharton and 
 Binney, contra. 
 
 Mr. Justice Grier stated the case and delivered the opinion of the 
 court. — This action was brought by Derby, the plaintiff below, to recover 
 damages for an injury suffered on the railroad of the plaintiffs in error. 
 The peculiar facts of the case, involving the questions of law presented 
 for our consideration, are these: — 
 
 The plaintiff below was himself the president of another railroad 
 company, and a stockholder in this. He was on the road of defendants 
 by invitation of the president of the company, not in the usual pas- 
 senger-cars, but in a small locomotive-car used for the convenience of 
 the officers of the company, and paid no fare for his transportation. 
 The injury to his person was caused by coming into collision with a 
 locomotive and tender, in the charge of an agent or servant of the com- 
 pany, which was on the same track and moving in an opposite direction. 
 Another agent of the company, in the exercise of proper care and 
 caution, h&d given orders to keep this track clear. The driver of the 
 colliding engine acted in disobedience and disregard of these orders, 
 and thus caused the collision. 
 
 The instructions given by the court below at the instance of the 
 plaintiff, as well as those requested by the defendants and refused by 
 the court, taken together, involve but two distinct points, which have 
 been the subject of exception here, and are in substance as follows : — 
 
 1. The court instructed the jury that if the plaintiff was lawfully on 
 the road at the time of the collision, and the collision and consequent 
 injury to him were caused by the gross negligence of one of the 
 servants of the defendants, then and there employed on the road, he is 
 entitled to recover, notwithstanding the circumstances given in evidence, 
 and relied upon by defendants' counsel as forming a defence to the 
 action, to wit: that the plaintiff was a stockholder in the company, 
 riding by invitation of the president, paying no fare, and not in the 
 usual passenger-cars, etc. 
 
 2. That the fact tlmt the engineer having the control of the colliding 
 locomotive was forbidden to run on that track at the time, and had
 
 INJURY TO FREE PASSENGER. 33 
 
 Supreme Court of the United States. 
 
 acted in disobedience of such orders, was not a defence to the 
 action. 
 
 1. In support of the objections to the first instruction, it is alleged 
 *' that no cause of action can arise to any person by reason of the 
 occurrence of an unintentional injury, while he is receiving or partaking 
 of any of those acts of kindness which spring from mere social rela- 
 tions ; and that as there was no contract between the parties, express 
 or implied, the law would raise no duty as between them, for the neglect 
 of which an action can be sustained." 
 
 In support of these positions, the cases between innkeeper and guest 
 have been cited, such as 1 Rolle's Abridgment, 3, where it is said, " If a 
 host invite one to supper, and the night being far spent he invites him 
 to stay all night, and the guest be robbed, yet the host shall not be 
 chargeable, because the guest was not a traveller;" and Calye's Case,^ 
 to the same effect, showing that the pecuUar liability of an innkeeper 
 arises from the consideration paid for his entertainment of travellers, 
 and does not exist in the case of gratuitous lodging of friends or 
 guests. Tlie case of Farwell v. Boston and Worcester Railroad Com- 
 pany^ hsiS also been cited, showing that the master is not liable for 
 any injury received by one of his servants in consequence of the care- 
 lessness of another while both are engaged in the same service. 
 
 But we are of opinion that these cases have no application to the 
 present. The liability of the defendants below for the negligent and 
 injurious act of their servant is not necessarily founded on any contract 
 or privity between the parties, nor affected by any relation, social or 
 otherwise, which they bore to each other. It is true, a traveller by 
 stage-coach or other public conveyance who is injured by the negli- 
 gence of the driver has an action against the owner, founded on his 
 contract to carry him safely. But the maxim of respondeat superior, 
 which by legal imputation makes the master liable for the acts of his 
 servant, is wlioUy irrespective of any contract, express or implied, or 
 any other relation between the injured party and the master. If one 
 be lawfully on the street or highway, and another's servant carelessly 
 di'ives a stage or carriage against him and injures his property or 
 person, it is no answer to an action against the master for such injur}- 
 either that the plaintiff was riding for pleasure, or that he was a stock- 
 holder in the road, or that he had not paid his toll, or that he was the 
 guest of the defendant, or riding in a carriage borrowed from him, or 
 that the defendant was the friend, benefactor, or brother of the plaintiff. 
 
 1 8 Coke, 63. * 4 Mete. 49.
 
 34 WHEN RELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Philadelphia and Reading Railroad Company v. Derby. 
 
 These arguments, arising from the social or domestic relations of life, 
 may in some cases successfully appeal to the feelings of the plaintiff^ 
 but will usually have little effect where the defendant is a corporation, 
 which is itself incapable of such relations or the reciprocation of such 
 feelings. 
 
 In this view of the case, if the plaintiff was lawfully on the road at 
 the time of the colHsion, the court were right in instructing the jury 
 that none of the antecedent circumstances, or accidents of his situation, 
 could affect his right to recover. 
 
 It is a fact peculiar to this case that the defendants, who are liable 
 for the act of their servant coming down the road, are also the carriers 
 who were conveying the plaintiff up the road, and that their servants 
 immediately engaged in transporting the plaintiff were not guilty of any 
 negligence, or in fault for the collision. But we would not have it 
 inferred from what has been said that the circumstances alleged in the 
 first point would affect the case if the negligence which caused the 
 injury had been committed by the agents of the company who were in 
 the immediate care of the engine and car in which the plaintiff rode, 
 and he was compelled to rely on these counts of his declaration founded 
 on the duty of the defendant to carry him safely. This duty does not 
 result alone from the consideration paid for the service. It is imposed 
 by the law, even where the service is gratuitous. "The confidence 
 induced by undertaking any service for another is a sufficient legal 
 consideration to create a duty in the performance of it." ^ It is true, a 
 distinction has been taken, in some cases, between simple negligence 
 and great or gross negligence ; and it is said that one who acts gratuit- 
 ously is liable only for the latter. But this case does not call upon us 
 to define the difference (if it be capable of definition), as the verdict 
 has found this to be a case of gross negligence. 
 
 When carriers undertake to convey persons by the powerful but 
 dangerous agency of steam, public policy and safety' require that they 
 be held to the greatest possible care and diligence. And whether the 
 consideration for such transportation be pecuniary or otherwise, the 
 personal safety of the passengers should not be left to the sport of 
 chance or the neghgence of careless agents. Any negligewce, in such 
 cases, may well deserve the epithet of "gross." 
 
 In this view of the case, also, we think there was no error in the first 
 instruction. 
 
 2. The second instruction involves the question of the liability of the 
 
 ' See Coggs v. Bernaid, and cases cited in 1 Smith's Ld. Cas. 95.
 
 INJURY TO FREE PASSENGER. 35 
 
 Supreme Court of the United States. 
 
 master where the servant is in the course of his employment, hut in 
 the matter complained of has acted contrary to the express command 
 of his master. 
 
 The rule of respondeat superior, or that the master shall be civilly 
 liable for the tortious acts of his servant, is of universal application, 
 whether the act be one of omission or commission, whether negligent, 
 fraudulent, or deceitful. If it be done in the course of his employment, 
 the master is liable ; and it makes no difference that the master did not 
 authorize or even know of the servant's act or neglect, or even if he 
 disapproved or forbade it, he is equally liable if the act be done in the 
 course of his servant's employment.^ 
 
 There may be found, in some of the numerous cases reported on this 
 subject, dicta which, when severed from the context, might seem to 
 countenance the doctrine that the master is not liable if the act of his 
 sei'vant was in disobedience of his orders. But a more careful examina- 
 tion will show thaf they depended on the question whether the servant, 
 at the time he did the act complained of, was acting in the course of 
 his emplo^^ment ; or in other words, whether he was or was not at the 
 time in the relation of servant to the defendant. 
 
 The case of Sleuth v. Wilson'^ states the law in such cases distinctly 
 and correctly. In that case, a servant having his master's carriage and 
 horses in his possession and control was directed to take them to a cer- 
 tain place ; but instead of doing so he went in another direction to 
 deliver a parcel of his own, and, returning, drove against an old woman 
 and injured her. Here the master was held liable for the act of the 
 servant, though at the time he committed the offence he was acting in 
 disregard of his master's orders ; because the master had intrusted the 
 carriage to his control and care, and in driving it he was acting in the 
 course of his employment. Mr. Justice Erskine remarks in this case : 
 " It is quite clear that if a servant, without his master's knowledge, 
 takes his master's carriage out of the coach-house, and with it com- 
 mits an injury, the master is not answerable ; and on this ground, 
 that the master has not intrusted the servant with the carriage ; but 
 whenever the master has intrusted the servant with the control of 
 the carriage, it is no answer that the servant acted improperly in the 
 management of it. If it were, it might be contended that if a master 
 directs his servant to drive slowly, and the servant disobe3'S his orders 
 and drives fast, and through his negligence occasions an injury, the 
 
 ' See Story on Ag., § 452; Smith on Master and Servant, 152. 
 « 9 Car. & P. 607.
 
 3G WHEN RELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Philadelphia and Reading Railroad Company v. Derby. 
 
 master will not be liable. But that iu not the law; the master, in 
 such a case, will be liable, and the ground is that he has put it in the 
 servant's power to mismanage the carriage, by intrusting him with 
 it." 
 
 Although among the numerous cases on this subject some may be 
 found, such as the case of Lamb v. Palh^^ in which the court have made 
 some distinctions which are rather subtile and astute, as to when the 
 servant may be said to be acting in the employ of his master, yet we 
 find no case which asserts the doctrine that a master is not liable for the 
 acts of a servant in his employment, when the particular act causing 
 the injury was done in disregard of the general orders or special 
 command of the master. Such a qualification of the maxim of respon- 
 deat superior would, in a measure, nullify it. A large proportion of the 
 accidents on railroads are caused by the negligence of the servants or 
 agents of the company. Nothing but the most stringent enforcement 
 of discipline, and the most exact and perfect obedience to every rule 
 and order emanating from a superior, can insure safety to life and 
 property. The intrusting such a powerful and dangerous engine as a 
 locomotive to one who will not submit to control and render impUcit 
 obedience to orders is itself an act of negligence, the causa causans of 
 the mischief ; while the proximate cause, or the ii^sa negligentia, which 
 produces it may truly be said in most cases to be the disobedience of 
 orders by the servant so intrusted. If such disobedience could be set 
 up by a railroad company as a defence when charged with negligence, 
 the remedy of the injured party would in most cases be illusive ; dis- 
 cipline would be relaxed, and the danger to the life and limb of the 
 traveller greatly enhanced. Any relaxation of the stringent policy and 
 principles of the law affecting such cases would be highly detrimental 
 to the public safety. 
 
 The judgment of the Circuit Court is therefore aflSrmed. 
 
 Daniel, J., dissents from the decision of this court in this cause, upon 
 the ground that the said railroad company, being a corporation created 
 by the State of Pennsylvania, is not capable of pleading or being 
 impleaded, under the second section of the third article of the Consti- 
 tution, in any courts of the United States, and that therefore the Circuit 
 Court could not take cognizance of the controversy between that 
 corporation and the plaintiff in that court. ^ 
 
 Judgment affirmed. 
 
 I 9 Car. & P. 629. 
 
 » It is scarcely necessary to suggest to any practitioner that the Federal jurisdiction 
 is thoroughly established against the view of Mr. Justice Daniel. — Ed.
 
 MAIL AGENTS UPON RAILWAY TRAINS. 37 
 
 New York Court of Appeals. 
 
 2. MAIL AGENTS UPON RAILWAY TRAINS. 
 
 NoLTON V. Western Railroad Corporation.* 
 
 New York Court of Appeals^ 1857. 
 
 Hon. Hiram Denio, Chief Judge. 
 " Alexander S. Johnson, "1 
 " George T. Comstock, }- Judges. 
 " Samuel L. Selden, j 
 
 " John W. Brown, 
 " Alonzo C. Page, 
 
 Judges of the Supreme Court, 
 
 William H. Shankland, ^ ""'^ ex-officw Judges of the 
 " LeviF.Bowen, J Court of Appeals. 
 
 1. Obligation of Carrier towards Mail Agents. — Where a railway company transports 
 
 a mail agent upon its trains in pursuance of a contract made between the company and 
 the government, the relation of carrier and passenger does not, in a strict sense, subsist 
 between the company and the mail ageut. The carrier is not under the high degree of 
 care toward the mail agent which springs out of a contract of carriage, but is under a 
 duty imposed by law to transport him safely, which duly is violated when the mail 
 agent is injured through the gross negligence of the carrier or his servant. Gross 
 negligence is here, however, a relative term, depending upon the circumstances of 
 each particular case. 
 
 2. The Principle g-overning' such Cases. —In all cases where the carrier undertakes 
 
 the conveyance of a passenger, whether with or without compensation, in the absence 
 of an express agreement exempting him from responsibility, if the passenger is injured 
 through the culpable negligence or want of skill of the carrier's agents the carrier 
 must pay damages to the passenger. 
 
 Demurrer to complaint: The complaint stated that the plaintiff 
 was a mail agent on the defendant's railroad, in the employment of the 
 United States, and the defendant a carrier of passengers and freight, 
 for fare and reward, by railroad and cars, between Greenbush and 
 Boston ; that defendant was bound by contract between it and the 
 United States, for a stipulated time and price, to carry the mails, and 
 also the mail agent, without further charge ; that in pursuance and in 
 consideration of such contract, the defendant received the plaintiff into 
 a car fitted up for the accommodation of the mail and mail agent ; and 
 the plaintiff, for the consideration aforesaid, became and was a passen- 
 ger in the said cars, to be b}' the defendant thereby safely and with due 
 care and skill carried and conveyed to Worcester, which the defendant 
 then and there undertook and was bound to do. It then states a bodily 
 injury received by the plaintiff by the running- of the car containing 
 
 ♦ Reported, 15 N. Y. 444.
 
 38 WHEN RELATION OF CAURIEK AND PASSENGER SUBSISTS. 
 
 Nolton V. Western Railroad Corporation. 
 
 the plaintiff off the track, and breaking it, through defectiveness of 
 raachinerv. want of care, skill, etc. The defendant demurred, and 
 after final judgment for the plaintiff by the Supreme Court at General 
 Term, appealed to this court. The case was submitted on printed 
 liriefs. 
 
 N. Hill, for the appellant ; W. A. Beach, for the respondent. 
 
 Selden. J. — As the only objection which can be taken to the com- 
 plaint upon this demurrer is that it does not contain facts sufficient to 
 constitute a cause of action, it is entirely immaterial whether the action 
 be considered as in form ex contractu or ex delicto. The only question 
 is, whether, upon the facts stated, the plaintiff can maintain an action 
 in any form. The plaintiff cannot, I think, avail himself of the contract 
 between the defendant and the government, so as to make that the 
 gravamen of his complaint and the foundation of a recovery. This is 
 not Hke the cases in which a third person has been permitted to recover 
 upon a contract made by another party for his own benefit. The dis- 
 tinction between them is plain. Those were cases where the defendant, 
 for a consideration received from the party to the contract, had under- 
 taken to do something ostensibly and avowedly for the direct benefit of 
 the plaintiff, and when the advantage to the latter was one object of the 
 agreement. Here the parties had no such intention. In contracting 
 for the transportation of the mail agent, the parties had no more in 
 view any benefit or advantage to him than if the contract had been to 
 transport a chattel. The government took care of the public interests, 
 ;md left those of the mail agent to such protection as the law would 
 afford. 
 
 Another distinction is, that in the cases referred to, the party claim- 
 ing the benefit of the contract and seeking to enforce it was one who 
 was specifically mentioned and pointed out in the contract itself, while 
 here no one is designated ; and to entitle the plaintiff to recover upon % 
 it must be regarded as a shifting contract, which can be made to enure 
 to the benefit of any person who may temporarily assume the duties of 
 mail agent. I think there is no precedent for such a construction of 
 such a contract. 
 
 If, then, the plaintiff can recover at all, it must be upon the ground 
 of some implied contract, or of some legal obligation or duty resting 
 upon the defendant to exercise proper care and skill in the transpor- 
 tation of passengers ; and the question is, whether, under the circum- 
 stances of this case, such a contract is implied, or such a duty imposed 
 for the benefit of the plaintiff. 
 
 It would seem a startling proposition that in all those cases where
 
 MAIL AGENTS UPOX RAILWAY TRAINS. 39 
 
 New York Court of Appeals. 
 
 persons travel upon railroads, engaged not in their own business, but 
 that of others, and where their fare is paid by their employer, they are 
 entirely at the mercy of the railroad agents, and without redress if 
 injured through their recklessness and want of care and skill. If, 
 however, railroad companies are liable in cases like the present, it is 
 important to ascertain the precise nature and extent of that liability. 
 
 In the first place, then, it is clear that they are not liable by virtue 
 of that custom or rule of the common law which imposes special and 
 peculiar obligations upon common carriers. 
 
 Persons engage;! in the conveyance of passengers are not common 
 carriers, within the meaning of that rule, which applies solely to those 
 whose business it is to transport goods. ^ 
 
 If the complaint in this case, after stating that the defendant was a 
 carrier of passengers and freight from Greenbush to Boston for hire 
 and reward, had simply averred that the plaintiff became a passenger 
 in the cars of the defendant, and was so received b}'^ it, an implied 
 contract would have arisen on the part of the defendant to transport 
 the plaintiff with all due diligence and skill ; because the law would 
 have inferred from those facts that the defendant was to receive a 
 compensation from the plaintiff himself. But this inference is repelled 
 b}' the contract set forth, and the statement that the plaintiff was 
 received as a passenger under it. 
 
 It was suggested by the plaintiff's counsel, upon the argument, that a 
 contract might be implied, of which the agreement between the defend- 
 ant and the government should form the consideration and basis. But 
 although that agreement ma}' be resorted to for the purpose of showing 
 that the plaintiff became a passenger upon the cars by the consent of 
 the defendant, and not as a mere intruder, it cannot, I think, be made 
 available bj^ the plaintiff as the consideration of an implied assumpsit. 
 As to him, that agreement is res inter alios acta. He is not a party to 
 it, or mentioned in it. His employment by the government may have 
 taken place long after the agreement was made, and have had no refer- 
 ence to it. If any contract can be implied from that agreement, in favor 
 of the plaintiff, it must be a contract to transport him from place to 
 place according to the terms of the agreement. Suppose, then, the 
 cause of action, instead of being for an injury received through the 
 negligence of the defendant, had been for not furnishing the necessary 
 cars, or not running any train, could the plaintiff recover in such an 
 action ? Would the defendant be liable for its failure to perform the 
 
 1 Bac. Abr., tit. "Carriers;" 2 Kent's Comm., § 40; Story on Bail., § 49S, and note.
 
 40 WHEN RELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Nolton V. Western Railroad Corporation. 
 
 contract, not only to the party with whom the contract was made and 
 from whom the consideration was received, but to a third party, not 
 named in it, and from whom they had received nothing? No one would 
 claim this. 
 
 It may be said that the implied contract with the plaintiff is limited 
 to an undertaking to transport safely, or with due care. It is difficult 
 to see, however, how there can be a contract to transport safely where 
 there is no contract to transport at all. My conclusion, therefore, is 
 that this action cannot be maintained upon the basis of a contract, 
 express or implied. It necessaril}^ follows that it must rest exclusively 
 upon that obligation which the law always imposes upon every one who 
 attempts to do any thing, even gratuitously, for another, to exercise some 
 degree of care and skill in the performance of what he has undertaken. 
 The leading case on this subject is that of Coggs v. Bernard.^ There 
 the defendant had undertaken to take several hogsheads of brandy 
 belonging to the plaintiff from one cellar in London, and to deposit 
 them in another ; and in the process of moving, one of the hogsheads 
 was staved and the brandy lost, through the carelessness of the defend- 
 ant or his servants. Although it did not appear that the defendant was 
 to receive any thing for his services, he was nevertheless held liable by 
 the whole court. 
 
 The principle of this case has never since been doubted, but there 
 has been some confusion in the subsequent cases as to the true nature 
 of the obligation, and as to the form of the remedy for its violation. 
 In manj' instances suits have been brought upon the supposition that an 
 implied contract arises in all such cases that the party will exercise due 
 care and diligence ; and the language of Lord Holt in Coggs v. Bernard ' 
 undoubtedly gives countenance to this idea. He seems to treat the trust 
 and confidence reposed as a sufficient consideration to support a promise. 
 This doctrine, however, can hardly be considered as in consonance with 
 the general principles of the common law. In addition to the difficulty 
 of bringing mere trust and confidence within any legal definition of val- 
 uable consideration, there is a manifest incongruity in raising a contract 
 to do with care and skill that which the party is under no legal obliga- 
 tion to do at all. 
 
 The duty arises in such cases, I apprehend, entirely independent of 
 any contract, either expressed or implied. The principle upon which a 
 party is held responsible for its violation does not differ very essentially 
 in its nature from that which imposes a liability upon the owner of a dan- 
 
 1 Ld. Raym. 909.
 
 MAIL AGENTS UPON RAILWAY TRAINS. 41 
 
 New York Court of Appeals. 
 
 gerous animal who carelessly suffers such animal to run at large, by 
 means of which another sustains injury ; or upon one who digs a ditch 
 for some lawful purpose in a highway, and carelessly leaves it uncovered 
 at night, to the injury of some traveller upon the road. It is true it 
 may be said that in these cases the duty is to the public, while in the 
 present case, if it exists at all, it is to the individual. But the basis of 
 the liability is the same in both cases, viz., the culpable negligence of 
 the party. All actions for negligence presuppose some obligation or 
 duty violated. Mere negligence where there was no legal obligation 
 to use care, as where a man digs a pit upon his own land and care- 
 lessly leaves it open, affords no ground of action. But where there 
 is any thing in the circumstances to create a duty, either to an individual 
 or the public, any neglect to perform that duty, from which Injury arises, 
 is actionable. 
 
 The present case falls clearly within this principle of liability. There 
 can be no material difference between a gratuitous undertaking to trans- 
 port property, and a similar undertaking to transport a person. If 
 either is injured through the culpable carelessness of the carrier, he 
 is liable. If, according to the case of Coggs v. Bernard (supra) and 
 the subsequent cases, an obligation to exercise care arises in one case, 
 it must also in the other. 
 
 It is true that according to the authorities the party, in such cases, is 
 only liable for gross negligence. But what will amount to gross negli- 
 gence depends upon the special circumstances of each case. It has 
 been held that when the condition of the pai'ty charged is such as to 
 imply peculiar knowledge and skill, the omission to exercise such 
 skill is equivalent to gross negligence. Thus, it was said by Lord 
 LouGHBOUROUGH, in Shiells v. Blackbicrne,'^ that "if a man gratuitously 
 undertakes to do a thing to the best of his skill, when his situation or 
 profession is such as to imply skill, an omission of that skill is imput- 
 able to him as gross negligence." The same doctrine is advanced by 
 Parke, B., in Wilson v. Brett.^ He says: "In the case of a gratuitous 
 bailee, where his profession or situation is such as to imply the posses- 
 sion of competent skill, he is equally liable for the neglect to use it." 
 
 I regard this principle as peculiarly applicable to railroad companies, 
 in view of the magnitude of the interests which depend upon the skill of 
 their agents, and of the utter powerlessness of those who trust to that 
 skill to provide for their own security. 
 
 This case is not like that of Winterhottom v. Wright.^ There the 
 
 » 1 H. Black. 168. > 11 Mee. & W. 113. » 10 Mee. & W. 109.
 
 42 WHEN RELAllON OF CARRIER AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 ■defendant had not undertaken to' transport the plaintiff, either gra- 
 tuitously or otherwise. He was simply bound b}' contract with the 
 government to furnish and keep in repair the carriages used by the 
 latter in transporting the mails. The relations of the parties in that 
 oase and in this are very different, and the cases cannot be consid- 
 ered as governed by the same principles. I entertain no doubt that 
 in all cases where a railroad company voluntarily undertakes to con- 
 vey a passenger upon its road, whether with or without compensa- 
 tion, in the absence, at least, of an express agreement exempting it 
 from responsibility, if such passenger is injured by the culpable negli- 
 gence or want of skill of the agents of the company the latter is 
 liable. The matter of compensation may have a bearing upon the 
 degree of negligence for which the company is liable. That question, 
 however, does not arise here. Degrees of negligence are matters of 
 proof, and not of averment. The allegations of negligence in this 
 complaint are sufficient, whether the defendant is liable for ordinary 
 or only for gross negligence. 
 
 The judgment should be affirmed. 
 
 Browtj, J., also delivered an opinion for affirmance. All the judges 
 concurring, 
 
 Judgment affirmed. 
 
 NOTES. t 
 
 § 1 . The Relation of Carrier and Passenger arises how. — Though the 
 relation of carrier and passenj^er, strictly speaking, arises only from the contract 
 of carriage, still, to render the carrier responsible for negligence, such contract 
 need not be express, nor actually consummated. Very slight circumstances 
 will suffice to sustain an implication of it. Where it appeared that the plain- 
 tiff held up his finger to the driver of an omnibus, who stopped to take him 
 up, and that, just as the plaintiff was putting his foot on the step of the omnibus, 
 the driver drove on, and the plaintiff fell on his face to the ground, the court 
 held that this was evidence to go to the jury in support of the declaration, which 
 set up a contract for carriage, as the stopping of the omnibus implied a consent 
 to take the plaintiff up as a passenger.' In another case, which was an action 
 for the loss of baggage, the plaintiff 's possession of a baggage-check, and the 
 testimony of the baggage-master that when required by passengers he put 
 checks on their baggage and gave duplicates to the passengers, were held to be 
 sufficient evidence that the plaintiff was a passenger on the cars, and that he had 
 baggage checked on that occasion.* 
 
 1 Brien v. Bennett, 8 Car. & P. 724. « Davis v. Cayuga etc. R. Co., 10 How. Pr. 330.
 
 HOW THE RELATION ARISES. 43 
 
 Gratuitous Carriage. 
 
 § 2. Consummation of the Contract not necessary. — It is not necessary to 
 the existence of tlie relation of carrier and passenger that the contract should 
 be actually consummated, either by the payment of fare, or entry into the cars or 
 vessel of the carrier. Going into the depot or waiting-room of the defendant 
 and waiting for the means of conveyance with a bond fide intention of becoming 
 a passenger is sufficient to cast upon the defendant the duty of treating the 
 plaintiff as a passenger.' In an Iowa case, the plaintiff entered the office or 
 waiting-room provided by the defendant for passengers, and informed the depot 
 or ticket agent of her desire to become a passenger. She, in good faith, placed 
 herself under his direction, and he directed her as to the manner in which she 
 was to get on a caboose-car on which she was to take passage. This was held 
 sufficient to justify the jury in finding that the relation of passenger and carrier 
 existed.'' Where one goes upon a passenger steamboat, in good faith, to take 
 passage thereon, he is there in the character and relation of a passenger, and the 
 ■owner of the boat owes to him the duty of a carrier of passengers, although no 
 fare has been paid.' The whole matter seems to depend upon the intention of 
 the person at the time he enters the boat, or cars, or waiting-room of the 
 defendant. In Illinois it has been held that where a steamboat lauds at one of 
 its usual stopping-places for the purpose of taking on freight and passengers, it 
 is not a presumption of law that every person who goes on board does so as a 
 passenger unless he notifies an officer of the boat to the contrary, so as to relieve 
 the officers from the duty of giving such as do not come aboard as passengers 
 proper time and facilities for getting ashore.* But though the relation depends 
 to a great extent upon the intention of the person seeking to become a passenger, 
 yet if, after having violated the regulations of the company by refusing to 
 pay his fare, or by conducting himself improperly, he has been rightly ejected 
 therefor from the cars, he cannot by climbing again into the cars and offering 
 to pay his fare restore the relation of carrier and passenger. He has violated 
 the contract for carriage, on his part, and he has no right to insist that it shall 
 be performed on the part of the carrier.* 
 
 §3. Persons riding gratuitously. — The relation of carrier and passenger 
 certainly does not exist between a railroad company and one who secretes him- 
 self on their train with a view of fraudulently obtaining a free ride, nor between 
 the owners of a vessel and a "stowaway." This doctrine extends further, and 
 includes the case of one who knowingly induces the conductor of a train to 
 violate the regulations of the company and disregard his obligations of fidelity 
 to his employer. Therefore, where a man and his vnfe persuaded the conductor 
 to permit them to ride free, knowing that it was contrary to the rules of the 
 company, and he was killed in a collision, the court held, in an action by the 
 wife for damages, that the company did not owe him the duty of a carrier to a 
 
 '■ Gordon v. Grand Street etc. R. Co., 40 < Keokuk Packet Co. v. Ileury, 50 III. 
 
 Barb. 546. 264. 
 
 2 Allendert;. Chicago etc. R. Co., 37 Iowa, ' O'Brien v. Boston etc. R. Co., 15 Gray, 
 
 264. 20, ante, p. 22 ; Nelson v. Long Island IX. Co., 7 
 
 ' Cleveland v. New Jersey Steamboat Co., Hun, 140; The People v. Jillson, 3 Park. Cr. 
 
 68 N. Y. .306. See also Hurt v. Southern R. Cas. 234 ; Hibbard v. New York etc. R. Co., 15 
 
 Co., 40 Miss. 391. N. Y. 455.
 
 ■14 WHEN RELATION OF CARRIEIl AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 passenger.' In a case in which it appeared that a cattle-shipper fraudulently 
 obtained a "drover's pass" for his wife from the agent of a railroad company 
 by representing that she was the owner of a part of the stock, whereas the fact 
 was that she was neither an owner nor had charge of any part of the stock ; and 
 further, that when the pass was presented the conductor refused to honor it, and^ 
 upon her declining to pay the fare, handed her, without violence or incivility, 
 from the train, whereupon the fare was paid and plaintiffs reentered the train 
 and proceeded upon their journey ; the court held that the relation of carrier and 
 passenger did not exist as to the wife.^ So held, too, in the case of a person 
 travelling upon a pass issued to another person which was not transferable, and 
 passing himself for the person therein named.' But the simple fact that an 
 agent of the carrier violates his duty and invites a person to ride free, without 
 a collusion on his part with the agent to defraud the carrier, will not operate so 
 as to deprive him of his remedy as a passenger, if he is injured through the care- 
 lessness of the carrier's agents.* In an English case it appeared that the defend- 
 ant, a railroad corporation, was required by its charter regulations to run certain 
 trains upon which children under three years of age were permitted to ride free 
 and half -fare was charged for children between three and twelve years of age. 
 The plaintiff was thi'ee years and three months of age, and was riding upon the 
 train in charge of his mother (who took a ticket for herself alone), and was 
 injured through the negligence of the defendants. The defence was that he was 
 not a passenger ; but the court held otherwise.^ The carrier does not, by consent- 
 ing to carry a person gratuitously, relieve himself of the responsibility which 
 the law imposes upon him with reference to passengers generally. Where the 
 assent to his riding free has been legally and properly given, he is entitled to the 
 same degree of care as if he paid his fare.* Thus, a guest of the president of a 
 railroad company, riding by his invitation in a special car, was injured in a colli- 
 sion. The court held that the fact that he paid nothing for his passage had no 
 effect upon the duty which the company owed him as a passenger.' Where a. 
 person was carried free upon the defendant's vessel in consideration of the fact 
 that he was a " steamboat-man," it being the custom to carry such persons free, 
 the court held, in an action for personal injuries by the negligence of the defend- 
 ant's agents, that the circumstance of free carriage did not deprive him of the 
 right of redress enjoyed by other passengers.* Nor, after it has once had its 
 inception, will the relation of carrier and passenger be affected by the circum- 
 stance that the agent of the carrier, in consideration of the fact that the passen- 
 ger has been injured, returns the money paid for passage.* 
 
 1 Toledo etc. R. Co. v. Brooks, 81 111. 245. & S. 327; s. c L. R. 2 Q. B. 442; 36 L. J. (Q. 
 
 See also Chicago etc. R. Co. v. Michie, 83 111. B.) 201; 15 Week. Rep. 863; 16 L. T. (N. S.) 
 
 427. 320. 
 
 9 Brown v. Missouri etc. R. Co., 64 Mo. 536. e Todd v. Old Colony R. Co., 3 Allen, 18; 
 
 3 Toledo etc. R. Co. v. Beggs, 85 111. 80. a. c. 7 Allen, 207; Rose v. Des Moines Valley 
 
 But see Great Northern R. Co. v. Harrison, R. Co., 39 Iowa, 246; Jacobus v. St. Paul etc. 
 
 23 L. J. (Exch.) 308; s. c. 12 C. B. 576; 26 R. Co., 20 Minn. 125; s. c. 1 Cent. L. J. 375. 
 
 Eng. Law & Eq. 443. Contra, Kinney v. Central R. Co., 34 N. J. L. 
 
 * Wilton V. Middlesex R. Co., 107 Mass. 108; 513. 
 
 s c. 125 Mass. 130; Pittsburgh etc. R. Co. v. '■ Phila. etc. R. Co. v. Derby, 14 How. 46S, 
 
 Caldwell, 74 Pa. St. 421 ; Wa^liburn v. Nash- ante, p. 31. 
 
 viUe etc. R. Co., 3 Head, 638. 8 str. New World r. King, 16 How. 469. 
 
 * Austin V. Great Western R. Co., 8 Best » Packet Co. i;. Clough, 20 Wall. 528.
 
 GUATUITOUS CAUKIAGE. 45 
 
 Person carrying on Business on Carrier's "Vehicle. 
 
 § 4. What constitutes Gratuitous Carriage. — It is not necessary that a 
 passenger's fare sliould be paid in money to constitute him a passenger for hire. 
 If the company receives any benefit or advantage in connection with his passage, 
 it is sufficient.! Thus, where a person was negotiating with a railroad company 
 respecting tlie introduction and use upon their ti'ains of a patent car-coupling, 
 and went at the request and expense of the company to a point on its road to see 
 one of its officers in relation to the matter, and a pass was furnished by the 
 company, it was held, in an action for an injury I'eceived during the transporta- 
 tion, that he was a passenger for hire.^ Nor is a person who accepts a drover's 
 pass, given to him in consideration of the shipment of cattle, in order that he 
 may accompany them to their destination, a gratuitous passenger.' 
 
 § 5. Persons carrsang on Business on the Carrier's Vehicles or Vessels. — 
 Persons who are permitted by carriers to travel upon their trains or boats for the 
 purpose of carrying on a lawful business, either for themselves or for another, 
 are very much in the same position as persons permitted to ride free. They pay 
 nothing for their passage, yet they are entitled to recover damages for a negli- 
 gent injury, the same as passengers carried for hire. Thus, a mail agent for 
 whose carriage together with the mail, in a car specially fitted up for that 
 purpose, the government had contracted with the defendant, a railroad com- 
 pany, and who himself paid nothing for his carriage, was held to be a passenger 
 in so far that the carrier was liable in damages for a negligent injury. An action 
 by such a person for personal injuries through negligence is maintainable, not 
 upon any theory of subrogation to the contract with the government, but in 
 view of the duty which the law imposes upon the carrier.* Such, too, is the posi- 
 tion of an express messenger sent along in charge of the matter of an express 
 company who have contracted with the carrier for the carriage of such matter 
 and their agent in charge of it,* This rule has been extended to include a person 
 temporarily supplying the place of the express messenger.'^ "There is no pro- 
 vision in the contract," said Miller, J., of the New York Court of Appeals, 
 "which prevents the employment by the express company of any person as a 
 messenger, or in the place of such messenger when for any reason he is pre- 
 vented from attending to his duties. The intestate, therefore, was lawfully upon 
 the cars, and entitled to the same protection as the messenger whose place he 
 filled." ' But where an express messenger brings a stranger into an express-car 
 for the purpose of teaching him the duties of the route, in order that he may 
 supply his place during his absence, and introduces him to the conductor as a 
 
 1 Railway Co. v. Stevens, 95 U. S. 655; Mo. 536; Indianapolis etc. R. Co. r. Beaver, 
 Railroad Co. v. Lockwood, 17 Wall. .'^T; 41 Ind. 493; Pennsylvania R. Co. v. Heuder- 
 Smith V. New York etc. R. Co., 24 N. Y. 222; son, 51 Pa. St. 315. 
 
 Cleveland etc. R. Co. v. Curran, 19 Ohio t Nolton v. Western R. Corp., 15 N. Y. 444, 
 
 bt. 1. ante, p. 37; Collett v. London etc. R. Co., 15 
 
 2 Railway Co. v. Stevens, 95 U. S. 655. Jur. lO.'iS; s. c. 20 L. J. (Q. B.) 411; 16 Q. B. 
 
 3 Railroad Co. i). Lockwood, 17 Wall. 357; 984; Hammond v. North-Eastern R. Co., 6 
 Smith V. New York etc. R. Co., 24 N. Y. So. Car. 130. 
 
 222; s. c. 29 Barb. 132; Cleveland etc. R. Co. '■> Yeomans v. Contra Costa Steam Nav. 
 
 V. Curran, 19 Ohio St. 1 ; Ohio etc. R. Co. v. Co., 44 Cal. 71. 
 
 .>^elby, 47 Ind. 471 ; Flinn v. I'hilii. etc. R. Co., « Blair v. Erie R. Co., 66 N. Y. 313. 
 
 1 Houst. 469; Graham v. Pacitic R. Co., 66 ' /d. 318.
 
 46 WHEN RELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 messenger learning the run, who thereupon demands no fare of him, when in fact 
 such person is not an employee of the express compam^, and is not present in the 
 car devoted to tlieir use by any authority of theirs, the person so introduced by 
 the express messenger into the car is not a passenger, but a trespasser, and 
 cannot demand the degree of care for his safety which the law requires the rail- 
 road compaii. to exercise toward its passengers. ^ A person leasing the bar upon 
 a steamboat, for the purpose of selling liquors, cigars, etc., and paying for the 
 privilege a certain sum per month, is a passenger, notwithstanding he does not 
 pay any thing specifically as passage-money.^ So, where a railroad company, in 
 consideration of the payment to them by a person of a certain sum of money per 
 3'ear in quarterly instalments, and of his agreement to supply the passengers on 
 one of their trains with iced water, issued season-tickets to him quarterly for 
 his passage on any of their regular trains, and permitted him to sell popped corn 
 on all their trains, it was held that his relation to them while travelling on their 
 road under this contract was that of a passenger and not that of a servant.^ 
 But a boy selling newspapers on the street, and accustomed to board street cars, 
 with the acquiescence of the servants of the company, for the purpose of sup- 
 plying the passengers with papers, 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 or slackening the speed of the car for him to- 
 leave it, whether requested so to do or not.* 
 
 §6. Employees of the Carrier. — Under what circumstances an employee 
 travelling on his employer's conveyance will stand in the relation of passenger 
 towards him is a question upon which there seems to be a want of unanimity 
 among the authorities. It would be useless to attempt to reconcile the decisions 
 on the subject. We-can but notice them, leaving it to the reader to decide which 
 are most in harmony with the general doctrine of master and servant, of which 
 this subject is but a branch. The rules which give point to the distinction are 
 these : If the status of the person is that of a passenger, the carrier is answerable 
 to him for any injury happening through very slight negligence, or a want of the 
 very highest degree of care ; * whereas if his status is that of servant, the carrier 
 owes to him but ordinary care.^ Again, if he is a passenger, the carrier is 
 answerable to him for injuries done to him by the servants of the latter, in con- 
 formity with the rule of respondeat superior.'' But if he is a servant of the carrier, 
 this rule does not apply so as to make the latter responsible for injuries done to 
 him by other servants of the carrier, engaged in the same common employment 
 with him, and of such a grade as to be denominated "fellow-servants" of his.* 
 
 In a case in Pennsylvania, the plaintiff was a common laborer employed with 
 other hands in digging and in filling certain gravel-cars which were used by the 
 defendants in transporting gravel along their railroad for the purpose of repairing 
 it. The hands boarded at a place about four miles distant from their principal 
 
 » Union Pacific R. Co. v. Nichols, 8 Kan. * Fleming v. Brooklyn City R. Co., 1 Abb. 
 
 505 ; s. c. 4 Ch. Leg. N. 82. N. C. 433. 
 
 2 Yeomans v. Contra Costa Steam Nav. ^ post, Chap. V. 
 
 Co., U Cal. 71. 6 2 Thomp. on Neg., p. 972. 
 
 8 The Commonwealth v. Vermont etc. R. ? Id., p. 861. 
 
 Co., 108 Mass. 7. « Jd., p. 969.
 
 GRATUITOUS CARRIAGE. 47 
 
 Carrier's Employees. 
 
 work, and it was visual for them to ride to and from their work in the gravel-cars. 
 While he and others were going to their work, the accident complained of hap- 
 pened by the dumping of one of the cars and throwing the plaintiff out on the 
 road. It was the understanding that the hands were to ride on the gravel-train 
 to and from their work and at their work. He neither paid his fare nor gave any 
 thing out of his wages for his passage to and fro. It was held that he was 
 simply a servant, with the privilege of riding, as part of his business, in the 
 gravel-train, which was one of the instruments of his work, and that he was no 
 more a passenger than is a coachman or carter when in the employment of 
 his master.^ 
 
 In another case, where the accident occurred by reason of a collision with a 
 hand-car by the gravel-train upon which the plaintiff was riding, the relations of 
 the plaintiff and defendants were almost identical with those of the parties to the 
 case just stated. The plaintiff was a common laborer, employed in repairing the 
 defendants' road-bed at a place several miles from his residence. Each morning 
 and evening he rode with other laborers to and from the place of labor, on the 
 gravel-train of the defendants. This was done with the consent of the company 
 and for mutual convenience, no compensation being paid directly or indirectly 
 by the laborers for the passage, and the company being under no contract to 
 convey the laborers to and from their work. It was urged that the plaintiff was 
 not in the employment of the defendants at the time the injury was received, and 
 that he might properly be considered as a passenger, and that the defendants, as 
 respecting him, were carriers for hire. But the court said : " It seems to us, in 
 no view of the case can this action be maintained. If the plaintiff was, by the 
 contract of service, to be carried by the defendants to the place for his labor, 
 then the injury was received while engaged in the service for which he was 
 employed, and so falls within the ordinary cases of serv^ants sustaining an injury 
 from the negligence of other servants. If it be not properly inferable from the 
 evidence that the contract between the parties actually embraced this transpor- 
 tation to the place of labor, it leaves the case to stand as a permissive privilege 
 granted to the plaintiff, of which he availed himself to facilitate his labors and 
 service, and is equally connected with it and the relation of master and servant, 
 and therefore furnishes no ground for maintaining this action." The court 
 then likened the case to that of a wood-chopper riding for his own convenience 
 upon his employer's wagon, driven by another servant, who overturns it by his 
 negligence.'' 
 
 In a case similar to the two just cited, which we will for identification call 
 " gravel-train cases," it was argued by the plaintiff's counsel that, by the arrange- 
 ment between the plaintiff and the defendant, the plaintiff was to be taken home 
 by the defendant on the gravel-train at night; that his day's work was completed 
 when the last load of gravel was deposited, and that he was under no further 
 obligation to do any thing for the company; that carrying him home was a 
 service to be performed by the company in consideration of the labor previously 
 done, and constituted a part of his wages ; that it was entirely optional with 
 him to avail himself of this service or not ; that while upon the train when the 
 
 » Ryan v. Cumberland Valley R. Co., 23 * Gillshannon v. Stony Brook R. Co., 10 
 
 ra. St. 384. Cush. 228, 231.
 
 48 WHEX RELATION OF CAURIEU AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 accident occurred, which was during the trip home after the day's work was 
 done, he was a passenger. The court thought that it was not entirely clear that, 
 unrler the agreement with the plaintiff, the defendants might not insist upon his 
 returning with the train at night, but said that, even conceding this, it did not 
 follow "that while actually returning to the city with the train he was not the 
 servant of the company. If he was a mere passenger, he was not bound to do 
 any thing to facilitate the return of the train. If an emergency arose requiring 
 the use of the brakes, he might refuse to raise his hand. If an obstruction was 
 met with upon the track, he might fold his arms until the company removed it; 
 and what he might do m this respect, every other hand returning to the city 
 under similar circumstances might also do. Such could not, I think, have been 
 the true relation between the parties. The plaintiff was employed by the 
 defendants as a day-laborer. He was to be taken up at the city, where he lived, 
 in the morning, and set down there at night ; and he should, I think, be regarded 
 as having been, during the entire interval, the servant of the company, and bound 
 as such to render aid, if necessary, in promoting the passage of the train both to 
 and from the city. This is decisive of the case." ^ 
 
 And in an English case, where the plaintiff, who was emploj'ed by a railway 
 company as a laborer to assist in loading what was called a "pick-up train" 
 with materials left by plate-layers and others upon the line, and where one of the 
 terms of his engagement was that he should be carried by the train from Bir- 
 mingham (where he resided and whence the train started) to the spot at which his 
 work for the day was to be done, and be brought back to Birmingham after his 
 day's work was done, it was held that while travelling to Birmingham at the end 
 of the day, he did not hold the relation of a passenger to the railway company .2 
 So, also, it was held that a person employed by a railroad company by the day, to 
 work as a carpenter in repairing fences along the line of the road, in repairing 
 bridges, making switch-frames, and other similar work, and who received permis- 
 sion, at the time he was engaged, to ride to his work without paying fare, could 
 not maintain an action against the company for injuries occasioned to him while 
 being so carried, by the negligence of their servants.-' 
 
 In Indiana the question we are now considering came up in a case where a 
 carpenter was employed by a railroad company to frame and build a bridge across 
 a certain creek on their road. While he was thus engaged in the work, the 
 company directed him to proceed in their cars to another place and assist in 
 loading timbers for the bridge ; and while riding on their cars as he was directed, 
 he was injured by the negligence of the defendants' servants. The court held 
 that at the time of the injury the plaintiff was a passenger, placing it upon the 
 ground that his business of house-carpenter, as applied to the erection of a 
 bridge, did not even remotely link him with the careless management of that 
 particular train. He had no particular duties the neglect of which contrib- 
 uted to the injury complained of,* This case was followed by another in the 
 
 1 Russell V. Hudson River R. Co., 17 N. Y. s Seaver v. Boston etc. R. Co., U Gray, 
 134. 466. 
 
 2 Tunney v. Midland R. Co., L. R. 1 C. P. < Gillenwater v. Madison etc. R. Co., 6 
 291; s c. 12 Jur. (N. s.) 691. See also Hutch- Ind. 339. See this and the foregoing case 
 inson v. York etc. R. Co., 6 Eng. Rail. Cas. disapproved in Columbus etc. R. Co. v. Ar- 
 6S0. nold, 31 Ind. 182.
 
 carrier's employees. 49 
 
 Persons attending Passengers. 
 
 same State, where the facts were almost identical with the "gravel-train cases " 
 heretofore stated ; and upon the authority of it it was held that a laborer return- 
 ing to his home on board of a gravel-train at night after his day's work was 
 done, paying no fare, either directly or indirectly, was a passenger at that 
 time.i 
 
 A case in Pennsylvania reviews a number of the authorities, and distinguishes 
 some of them. The plaintiff was a journeyman carpenter in the employ of the 
 defendants, a railroad company, and was engaged in repairing a bridge about 
 fifteen miles from where the plaintiff lived. The accident by which he was 
 injured occurred while he was returning from his work to his home, on a train, 
 at night. The plaintiff was not hired to pursue his work on the train, but was 
 carried in consideration of a reduction in the price of his wages. When his 
 day's work was done he was no longer in the service of the company, but was 
 iree to go or to stay ; and when he travelled, he in effect paid his fare out of his 
 wages, for he was hired at a less price per day than if he had paid his fare in 
 money. It was held that while so travelling to and from his work he was a 
 passenger.^ 
 
 All of the cases thus far noticed on this subject have been cases where the 
 employee was travelling to or from his work ; but the question has presented 
 itself where the employee has been travelling on his own business on his em- 
 ployer's conveyance. It would seem that in such a case the employee would 
 stand towards the carrier in the relation of passenger.' 
 
 § 7. Persons attending Passengers arriving or departing. — Of course, a 
 person who goes to a train or boat for the purpose of seeing a passenger off, or 
 to assist or welcome one arriving, cannot be regarded as a passenger. Yet it 
 seems that he ought not to be held to be a mere trespasser in entering the con- 
 veyance, depot, or wharf of the carrier. But it was held in a Massachusetts 
 case,* where a lady had conducted and assisted into the cars her aunt, who was 
 aged and infirm and affected by disease of the heart, and unable to enter the 
 cars without assistance, and where, after she had left her aunt and was leaving 
 the cars, she was, while attempting to step on the platform after the cars had 
 commenced to move, precipitated under the wheels and injured, that she had 
 no cause of action. The reason was that "the rules and regulations prescribed 
 by a railroad company in relation to the departure of trains and for giving 
 notice to passengers do not extend to persons who are not passengers, with 
 
 1 Fitzpatrick v. New Albany etc. R. Co., 7 are compelled to employ, that the pilot shall 
 Ind. 436. take upon himself the risk of injury from 
 
 2 O'Donnelli;. Allegheny etc. R. Co., 59 Pa. the negligence of the ship-owners' servants. 
 St. 239; 8. c. 50 Pa. St. 490. See also Cum- Smith i;. Steele, L. R. 10 Q. B. 125. 
 berland etc. R. Co. v. Myers, 55 Pa. St. 288; 3 ohio etc. R. Co. v. Muhling, 30 111. 9. 
 Kansas Pacific R. Co. v. Salmon, 11 Kan. 83; But see Higgins v. Hannibal etc. R. Co., 36 
 s. c. 14 Kan. 512. For cases of contractors' Mo. 418. In the days of slavery, it was hekl 
 workmen being carried on train, see Torpy that railroad companies were legally respon- 
 V. Grand Trunk R. Co., 20 Upper Canada Q. sible for injuries to slaves hired to aid in 
 B. 446; Sheerman v. Toronto etc. R. Co., 34 conducting trains, where the injury was the 
 Upper Canada, Q. B. 451; and Graham v. resultof carelessness of their agents. Louis - 
 Toronto etc. R. Co., 23 Upper Canada C. P. ville etc. R. Co. v. Yandell, 17 H. Mon. 586. 
 641. There is no implied contract between '' Lucas j;. New Bedford etc. R. Co., 6 Gray, 
 the owners of a ship and a pilot whom they 64.
 
 50 WHEN KELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 or without compensation, or who are on the premises without request or 
 instance of the company, and therefore the omission to comply with such 
 regulation is no ground of complaint by one who is not a passenger, if, under 
 the circumstances, the company used ordinary care.'" And it was further said : 
 "Persons entering the cars wiio are not passengers, and without the request or 
 instance of the company, are bound to know the time of departure (if such time 
 be fixed, and reasonable public notice given thereof J, and to leave the cars in 
 such season before the time so fixed as would enable them to get out with care 
 before the cars are set in motion. With the arrival of time fixed for the depart- 
 ure of the cars, the implied license or permission ceased, and with it the liability 
 of the defendants except in case of misfeasance or gross negligence." ^ Whether 
 the usual signals for leaving had been given or not was treated as an inquiry of 
 no importance, on the gi-ouud that the lady (who escorted her aunt into the cars) 
 was where she had no right to be, namely, on the step of the car. 
 
 In a case in Missouri, where the facts were similar, we think the better view of 
 the law was taken. The plaintiff was injured in attempting to leave a train to 
 which he had attended his sister-in-law, with her infant child, at night, and upon 
 which the lady and child became passengers. After referring to the case we 
 have just stated, the court said: "We should be very reluctant to hold that an 
 aged or infirm mother, or sister, or wife, or indeed any other woman, especially 
 if encumbered with an infant child, should not be allowed the assistance of a 
 male friend or relative in getting a seat upon a railroad car, and that such friend 
 or relative was to be treated as a mere stranger to the company, having no claim 
 upon the company for an injury under any circumstances. Not being a passen- 
 ger, it is conceded that no extraordinary care was required ; but whether the 
 neglect of customary signals would not amount to ordinary negligence is a 
 matter upon which the Massachusetts decision is not satisfactory." ^ So, in a 
 case where a depot-platform gave way on account of a great crowd which had 
 assembled to hear the President of the United States speak, and many persons 
 weie thereby injured and some killed, the court said: "Had it been the hour 
 for the arrival or departure of a train, and he [the plaintiff] had gone there to 
 welcome a coming or speed a parting guest, it might very well be contended 
 that he was there by authority of the defendants, as much as if he was actually 
 a passenger, and it would then matter not how unusual might have been the 
 crowd, the defendants would have been responsible. As to all such persons to 
 whom they stood in such a relation as required care on their part, they were 
 bound to have the structure strong enough to bear all who could stand on it ; as 
 to all others, they were liable only for wanton or intentional injury. The plaintiff 
 was on the spot merely to enjoy himself, to gi'atify his curiosity, or to give vent 
 to his patriotic feelings. The defendants had nothing to do with that." * 
 
 § 8. Passenger temporarily absent from Conveyance, etc. — As we have 
 seen, it is not necessary that a person should be on the conveyance, before 
 the relation of passenger and carrier begins. So, too, the relation may exist 
 at a time when the person who has been a passenger on the conveyance is 
 
 1 Lucasv. New Bedford etc. K. Co., 6 Gray, < Gillis v. Pennsylvania R. Co., 59 Pa. St. 
 
 67. i Ibid. 129, U.3 ; s. c. 8 Am. L. Reg. (N. s.) 729. See 
 
 ^ Doss V. Missouri etc. R. Co., 59 Mo. 27, 35. also Keokuk Packet Co. v. Henry, 50 111. 264.
 
 PASSENGER ABSENT FROM COiNVEYANCE. 51 
 
 Evidence — Burden of Proof. 
 
 temporarily absent from it,' — as where a passenger is walking on a platform of a 
 depot provided for the convenience of passengers while the train is stopping for 
 refreshments.^ So, too, he may be a passenger although at the time he has left 
 one conveyance and is walking to get on auother.^ Thus, a lady had issued to 
 her a policy of insurance against accident, which insured her life in the sum of 
 §5,000 in the event of her death from personal injury, "when caused by any 
 accident while travelling by public or private conveyance provided for the transpor- 
 tation of passengers." In the course of a journey by a connecting steamboat and 
 railway line she fell upon a slippery sidewalk, while walking from the steamboat- 
 landing to the railway-station as was usual for travellers on that route, and 
 thereby received injuries which caused her death. It was held (it appearing 
 that she was so walking in the actual prosecution of her journey) that the death 
 was covered by the terms of the policy, and that she was to be regarded as 
 having received the injury while travelling by public conveyance. It was further 
 held in that case that the fact that there were hacks by which the deceased might 
 have ridden from the lauding to the station did not affect the question, it being 
 the general custom for passengers to walk.* But if the person has left the 
 conveyance with no intention of returning, and is not pursuing, as it were, a 
 continuous line of travel, as in the last case stated, the relation of passenger and 
 carrier ceases with the passenger's departure from the conveyance, — certainly 
 when he has left the wharf or depot connecting therewith,^ — and the going back 
 to the conveyance after having left it, for some purpose of his own, with no 
 intention to continue his journey, would not revive the relation of passenger and 
 carrier which had terminated by his leaving it.^ 
 
 § 9. Evidence as to -who is a Passenger — Burden of Proof — Employee's 
 Pass — Evidence to show that the Train is a Passenger Train. — Every one 
 riding in a railroad car or other conveyance of a cari'ier is presumed pnma fade 
 to be there lawfully as a passenger, having paid, or being liable when called on 
 to pay his fare, and the onus is upon the carrier to pi'ove affirmatively that he 
 was a trespasser.' But it would be error to exclude the introduction in evidence 
 of a ticket which stated upon its face that it w^as a pass to the plaintiff, who was 
 suing a railroad company for injuries received by him through the alleged negli" 
 gence of the defendant's agents, and described him as "route-agent, an employee 
 of the Pennsylvania Railroad Company," which was the name of the defendant. 
 The court, in such a case, said: "The evidence offered was, of course, to show 
 that the plaintiff accepted and used this ticket. It certainly was an admission by 
 him that he bore to the plaintiff in error the relation of employee or servant. It 
 was not, indeed, conclusive, not an estoppel, if explained so as to show that he 
 was really not in the employ of the company, but, as was alleged, received and 
 
 ' Keokuk etc. Packet Co. v. True, 88 111. way Passengers' Assur. Co., 26 Eng. Law & 
 
 608; Clussnian v. Long Island R. Co., 9 Hun, Eq. 432. 
 618 (s. c. afflrmed, 73 N. Y. 606). 5 piatt v. Forty-second Street etc. R. Co., 
 
 2 Jeffersonville etc. R. Co. v. Riley, 39 Ind. 4 Thomp. & C. 406. 
 
 568. » Pittsburgh etc. R. Co. v. Krouse, 30 Ohio 
 
 3 Ilulbert V. New York etc. R. Co., 40 N. Y. St. 222. 
 
 14.5. ^ Pennsylvania R. Co. v. Books, 57 Pa. St. 
 
 •< Northrup v. Railway Passengers' Assur. 339; Creed v. Pennsylvania R. Co., 8G Pa. St. 
 Co., 43 N. Y. 516. See also Theobold v. Rail- 139.
 
 02 WHEN RELATION OF CARRIER AND PASSENGER SUBSISTS. 
 
 Notes. 
 
 used the ticket as a route-agent in the service of the post-ofBce department of the 
 government of the United States, under a contract between that department and 
 the company for carrying the mails. * * * The plaintiff in error had a right 
 to have the whole evidence go to the jury." i Where railroad companies permit 
 passengers to be usually carried on some of their freight-trains, if persons go 
 aboard one of their trains supposing it in good faith to be one of those on 
 which passengers are thus carried, and are not informed to the contrary before 
 receiving injuries to their persons, caused by the mismanagement of the train, 
 and there being nothing in the situation or condition of the train sho^ving that 
 passengers are not carried upon it as well as upon any other freight-trains, such 
 persons will have the rights of passengers in respect to such injuries, although 
 they were not in the habit of carrying passengers on that train ; and especially 
 will this be so if they are directed to go aboard by the conductor of the train, 
 although such conductor has in fact no authority from the compatiy for that 
 purpose. In such a case, the jury might find that such persons were aboard such 
 a freight-train as passengers. And it would be competent for such persons, in a 
 suit for damages for injuries received by them whUe on such trains, to introduce 
 in evidence conversations held by them at the time with the person who directed 
 them to the train, tending to show that he was an employee of the company.'^ 
 
 § 10. Persons employed on a Private Car — Slaves carried for Hire. — 
 Wliile a person in charge of a private car, or employed thereon, which is attached 
 to a railroad train, cannot strictly be considered a passenger, yet he certainly is 
 entitled to the rights of a passenger so far as an injury to him is concerned. 
 And he cannot be regarded as an employee of the railroad company so as to pre- 
 clude him from recovering for injuries received through the negligence of em- 
 ployees of the company.^ It was early held in the United States Supreme Court 
 that slaves being carried for hire occupied the relation of passengers to the 
 carrier.* 
 
 1 Penn. R. Co. v. Books, 57 Pa. St. 339. « Lockhart v. Lichtenthaler, 46 Pa. St. 151 ; 
 
 ■■' Lucas V. Milwaukee etc. R. Co., 33 Wis. Lackawanna etc. R. Co. v. Chenewith, 52 Pa. 
 
 41. See also Dunn v. Grand Trunk R. Co., 58 St. 382 ; Cumberland Valley B. Co. v. Myers, 
 
 Me. 187; Creed v. Penn. B. Co., 86 Pa. St. 139; 56 Pa. St. 288. 
 Houston etc. R. Co. v. Moore, 49 Texas, 31. * Boyce v. Anderson, 2 Pet. 150.
 
 CHAPTER III. 
 
 OF THE OBLIGATION OF THE CARRIER TO CARRY AC- 
 CORDING TO ADVERTISEMENT OR CONTRACT. 
 
 Leading Cases: 1. Denton v. Great Northern Bailway Company. — Failure of 
 a railway company to transport according to advertised 
 time-tables. 
 
 2. Eawcroft v. Grreat Northern Bailway Company. — Failure 
 
 of a railway company to transport according to special 
 contract. 
 
 3. Great Western Bailway Company v. Pocock. — Railway 
 
 ticket for one part of route not good for another part. 
 
 Notes: § 1. "What the ticket is. 
 
 2. Failure to transport according to contract. 
 
 3. Duty to run trains on schedule time. 
 
 4. Special contracts for carriage. 
 
 6. Right to stop off and resume journey on the same ticket. 
 6. Limited tickets. 
 
 1. FAILURE OF A RAILWAY COMPANY TO TRANSPORT ACCORDING 
 
 to advertised time-tables. 
 Denton v. Great Northern Eailway Company.* 
 
 English Court of Queen's Bench, 1856. 
 
 The Right Hon. John Lord Campbell, Chief Justice. 
 Sir John Taylor Coleridge, Kt., 
 
 " William Wightman, Kt., 
 
 " William Erle, Kt., 
 
 " Charles Crompton, Kt., 
 
 - Justices. 
 
 A railway company which advertises to transport passengers between two given points 
 within certain hours of each day, knowing that it cannot so transport passengers 
 owing to the discontinuance of a train on a connecting line, must pay to a person 
 who on the faith of such advertisement has come to its station to be so transported 
 the damages he has sustained by reason of the delay. 
 
 At the hearing of a plaint before the judge of the Bloomsbury 
 County Court of Middlesex, the judge of the County Court suggested 
 
 • Reported, 5 El. & Bl. 860. 
 
 (53)
 
 54 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Denton ■».- Great Northern Railway Company. 
 
 to the parties that, as the question was of general importance and there 
 was no power of appeal, the amount claimed in the plaint being under 
 £20, it was desirable that the plaint should be removed by certiorari 
 into one of the superior courts, with a view of stating a case for the 
 opinion of the court on the facts then found by him. The parties 
 having acceded to this course, the plaint was removed by certiorari 
 into this court ; and by order of a judge a case was stated, of which 
 what follows is an abridgment. 
 
 The plaintiff being in London in March, 1855, and having business 
 at Peterborough on the 25th of March, 1855, and at Hull on the 
 26th of March, 1855, consulted the pi'inted time-tables issued in the 
 usual way by the defendants for that month. In these time-tables 
 a train was advertised to leave London at 5 p. m., and reach Peter- 
 borough about 7 p. M., and thence to proceed, amongst other towns, 
 to Hull, to arrive there about midnight. At the bottom of the time- 
 tables was the following notice: "The companies make every exertion 
 that the trains shall be punctual, but their arrival and departure at 
 the time stated will not be guaranteed, nor will the companies hold 
 themselves responsible for delay, or any consequences arising there- 
 from." The time-tal)les advertising this train were till after the 26th 
 of March exhibited by the defendants at their stations, where the 
 plaintiff had seen them, and were printed and circulated, and on the 
 25th of March the plaintiff had one in his possession. 
 
 The plaintiff, having made his arrangements on the faith of these 
 time-tables, went down to Peterborough by an early train of the 
 defendants, transacted his business at Peterborough, and went to the 
 defendants' station at Peterborough in due time to take a ticket to 
 Hull by the evening train so advertised ; but there was no such train 
 to Hull, nor had there been one during any part of the month of 
 March. The explanation of this was that the whole line of railway 
 from Peterborough to Hull was not the property of the defendants, 
 tlieir Hne ending at Askerne on the route from Peterborough to Hull. 
 They had running powers over the line of the Lancashire and Yorkshire 
 Railway Company from Askerne to Milford Junction, where the line of 
 the North-Eastern Railway Company joins that of tlie Lancashire and 
 Yorkshire Railway Company. There had been in February an arrange- 
 ment between the three companies by which passengers booked at the 
 sations on the line of the Great Northern Railway Company were 
 carried in the carriages of that company to Milford Junction, and 
 thence were conveyed by the North-Eastern Railway Company to Hull 
 by a train departing a few minutes after the arrival of the train leaving
 
 FAILURE TO RUN TRAINS ON SCHEDULE TIME. 55 
 
 English Court of Queen's Bench. 
 
 Peterborough about 7 p. m. Towards the end of February, prior to 
 the publication by the defendants of their time-tables, but after they 
 had been prepared and printed, the North-Eastern Railway Company 
 gave notice to the defendants that after the first day of March the train 
 from Milford Junction to Hull would be discontinued. The defendants 
 nevertheless made no alteration in their time-tables, which were pub- 
 lished and issued for March. The plaintiff consulted them and was 
 misled as above stated. In consequence of the absence of this train 
 the plaintiff could not get to Hull in time for an appointment which he 
 had made for the morning of the 26th of March, and sustained damage 
 to the amount of £5 10s. It did not appear in or by the time-tables 
 whether the train from Peterborough to Hull was or was not entirely 
 under the control of the defendants. The question for the opinion of 
 the court was whether the plaintiff was entitled to recover. 
 
 Maynard, for the plaintiff. — The publication of the time-tables 
 amounted to a contract to have a train as advertised for the use of 
 those who would come to use it. It is analogous to the cases in which 
 an advertisement offering a reward for a service has been held to 
 amount to a contract to pay it, made with any person who performed 
 the condition.^ Besides, the defendants are carriers, who have pro- 
 fessed to carry to Hull. The obligation of a carrier is to carry 
 "according to his public profession;" per Parke, B., in JoJinson v. 
 Midland Railway Company.^ [Crompton, J. — Carriers of goods have 
 that obligation, but are there any cases showing that there is the same 
 obligation on carriers of passengers? There may be a distinction 
 between them. I do not say that there is one.] The point whether 
 there was such a distinction was mooted in Benett v. The Peninsular 
 Steamboat Company ^'^ but it did not become necessary to decide it. At 
 all events, the plaintiff is entitled to recover, as he was induced to act 
 on a representation made by the authorized servants of the defendants 
 w bich at the time it was made they knew to be false. 
 
 Hugh Hill, contra. — First, there is no contract. [Lord Campbell, 
 C. J. — The defendants are not owners of the whole line to Hull; but 
 I think that where there is a contract for carriage from one terminus to 
 aiiotlier, actually made with a railway company, it has been held imma- 
 terial how many companies intervened.] It was first so decided ^n 
 Muschamp v. Lancaster and Preston Junction Raihvay Company,'^ which 
 has often been acted upon ; so that, no doubt, if the plaintiff had 
 
 ' Williams v. Carwardine, 4 Barn. & Adol. « 4 Exch. 367. 
 
 621. See Gerhard v. Bates, 2 El. & Bl. 476. ^ g C. B. 775. * 8 Mee. & W. 421.
 
 56 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Denton v. Great Northern Kailway Company. 
 
 obtained a ticket for Hull, the defendants would have been answerable 
 for not taking him there, for the ticket would have been a contract. 
 But the question here is whether they have agreed to give a ticket to 
 any one who may come. If it is a contract, it is an absolute contract, 
 and whatever happens they must run a train as soon as practicable, 
 even though there was a convulsion of nature. ^ In the cases as tO' 
 rewards, the advertisement is a request to do certain work, for which the 
 advertiser promises to pay ; but this is no more than a statement that 
 they intend to run a train. If that is held to be a contract, the conse- 
 quences may be alarming. If a ship is once advertised as being about 
 to sail as a general ship, the owner has, according to this, made a con- 
 t; act with every one who chooses to come to offer goods or freight, that he 
 shall not change its destination. A mere pubhcation of an intention is 
 not a contract. In 1 Rolle' s Abridgment, 6, tit. '•'■ Action sur Case," M, pi. 
 1, it is said : " Si soit communication enter le pere de A. et B. pur un mar- 
 riage enter le dit A. et lefile de B., et B. tunc et ibidem affirme et publish 
 al pere de A. quod daret ei qui maritaret la dit file per son assent £100, 
 et puis A. marry le file de B. per son assent, uncore cest affirmance et 
 publicacion de B. ne raisera auscun promise, sur que un action sur as- 
 sumpsit poet estre port; pur ces que les dilz parolls ne include ascun 
 promise." Then, as to the supposed false representation. It appears 
 by the case that when the tables were printed they were accurate 
 enough ; there was no legal duty on them to print new time-tables. 
 [Ckompton, J. — It is not the original printing that makes against your 
 clients ; but they continue to issue them as representations that there 
 was such a train after they knew that there was not. It was a natural 
 consequence of such a representation that the plaintiff should act as he 
 did ; and he was by the representation induced to act. If these cir- 
 cumstances concur, there is a remedy by action, though not if any one 
 of them is wanting.^] 
 
 Maynard was not called upon to reply. 
 
 Lord Campbell, C. J. — This is a case of some importance, both as 
 regards the public and the railway companies. It seems to me that the 
 representations made by railway companies in their time-tables cannot 
 be treated as mere waste paper; and in the present case I think the 
 pldntiff is entitled to recover, on the ground that there was a contract 
 with him, and also on the ground that there was a false representation 
 by the company. 
 
 » Anonymous, 1 Dyer, 33 a, pi. 10; "Walton v. Watcrhouse, 2 Sannd. 421 a, note 2. 
 • Taylor v. Ashlon, 11 Mee. & W. 401.
 
 FAILUKE TO RUN TRAINS ON SCHEDULE TIME. 57 
 
 English Court of Queen's Bench. 
 
 It seems to me that if the company promised to give tickets for a 
 train running at a particular hour to a particular place, to any one who 
 would come to the station and tender the price of the ticket, it is a good 
 contract with any one who so comes. I take it to be clear that the 
 issuing of the time-tables in this way amounts in fact to such a 
 promise ; any one who reads them would so understand them. Then, 
 is it a good contract in law? The consideration is one which is a preju- 
 dice to the person who makes his arrangements with a view to the fulfil- 
 ment of the contract, and comes to the station on the faith of it. Is it 
 not, then, within the principle of those cases in which it has been held 
 that an action lies on a contract to pay a reward ? There the promise is 
 to the public at large, exactly as it is here ; it is in effect the same as 
 if made to each individual conditionally ; and, on an individual fulfilling 
 the condition, it is an absolute contract with him, and he may sue. 
 That being so, there is, I think, a contract; and there is no excuse 
 shown for breaking it. It is immaterial that the defendants are not 
 owners of the line the whole way to Hull. It is admitted to have been 
 often rightly held that where there is a ticket taken out to go to a sta- 
 tion, the contract binds the company issuing the ticket, though it is not 
 specified how much of the line over which the journey is to be belongs 
 to that company. Then reliance is placed on the class of cases which 
 decide that an absolute contract must be fulfilled whatever happens, 
 which, it is said, shows that there cannot be a contract here. But from 
 the nature of the contract I think there might be implied exceptions. 
 A carrier by sea excepts the perils of the sea. It may be, from the 
 nature of this contract, that the perils of the railroad are excepted, I 
 see no inconvenience likely to arise from holding this a contract. It is 
 put, as an example of inconvenience, that a ship-owner who has adver- 
 tised that his ship is bound for Calcutta as a general ship, and that he 
 will take on board goods brought to her, would be liable to an action if, 
 when goods are brought on the faith of the advertisement, he said he 
 had got a better freight, and was now bound for Jamaica ; but I see no 
 reason why he should not be liable. It seems to me, therefore, that 
 this is a contract, and that the plaintiff, who has acted on it, has his 
 remedy on that ground. But on the other ground there is no doubt. 
 The statement in the time-tables was untrue, and was made so as to be 
 what the law calls a fraudulent representation. It was not the original 
 printing that was blamable ; but after notice that the train was with- 
 drawn the defendants continue, down to the 25th of March, to issue 
 these tables. Was not that a representation that there was such a train? 
 And, as they knew it had been discontinued for some time, was it not
 
 58 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Denton v. Great Northern Railway Company. 
 
 a false representation ? It is all one as if a person duly authorized by 
 the company had, knowing it was not true, said to the plaintiff, " There 
 is a train from Milford Junction to Hull at that hour." The plaintiff 
 believes this, acts upon it, and sustains loss. It is well established law 
 that where a person makes an untrue statement, knowing it to be un- 
 true, to another, who is induced to act upon it, an action lies. The 
 facts bring the case within that rule. 
 
 (Coleridge, J., was absent.) 
 
 WiGHTMAN, J. — It seems to me that the publication of these time- 
 tables amounted to a promise to any one of the public who would come 
 to the station and pay for a ticket that he shall have one by the train at 
 seven. It is said that this will make the company liable though there 
 be inevitable accidents. But the provision at the foot of the time-tables 
 protects the company in cases of delay by accidents, though the pro- 
 viso does not apply to the present case, where the train is altogether 
 taken off. 
 
 But, whether there be a contract or not, the defendants are liable as 
 having induced the plaintiff, by a continued knowingly false represen- 
 tation, to believe that there was a train at seven to Hull; which he, 
 believing, acted upon to his prejudice. All the essentials for an action 
 for a false representation are here. The representation is untrue ; it ia 
 known by the persons making it to be untrue ; it is calculated to induce 
 the plaintiff to act; and he, believing it, is induced to act accordingly. 
 
 Crompton, J. — I also think that the plaintiff is entitled to judgment. 
 I entirely agree in what has been said by my lord and my brother 
 WiGHTMAN, that an action in the nature of an action for deceit lies 
 here. The company make a fresh statement at every moment whilst 
 they continue to hold out these time-tables as theirs. I am, besides, 
 much inclined to think that they are liable also on the ground that they 
 have committed a breach of their duty as public carriers. A public 
 carrier of goods must carry according to his public profession. I 
 think, however, that there has been no decision that carriers of passen- 
 gers are under the same obligation ; though in Story on Bailments ^ it is 
 said they are. I cannot doubt that the defendants publicly professed 
 to be cai-riers of passengers by this train ; and therefore I am inclined 
 to think an action would lie on that ground. But I am not prepared to 
 say that there is a contract. As I agree that the defendants are liable, 
 there is no occasion to decide this ; and it is true that the cases as to 
 the recovery of rewards have an analogy to this case. But there is a 
 
 1 S59L
 
 FAILURE TO TRANSPORT ACCORDING TO SPECIAL CONTRACT. 59 
 
 English Court of Queen's Bench. 
 
 <lifference : where a reward is offered, it is generally offered to procure n 
 service which is entirely performed by the party claiming the reward. I 
 never was able to see any good reason why in such cases he might not 
 sue for work and labor done at the request of the defendant. But in 
 the present case, or in that which might be put of a shopkeeper adver- 
 tising that he had cheap goods in his shop, I doubt if the labor of 
 coming to the station, or of crossing the threshold of the shop, reall}' 
 is part of the consideration at all. If it be, it is a very small one. I 
 agree, however, that any consideration, however small, will support a 
 promise ; and perhaps the difference between me and my lord and mj' 
 brother Wightman is rather as to the fact than the law. I doubt 
 whether the promise here, in fact, was in consideration of coming to the 
 station. If it was, I see difficult}' in saying that the shopkeeper does 
 not promise to have his wares for those who will take the trouble to 
 leave the street and come into his shop. But it is quite unnecessary, 
 for the decision of this case, to come to a determination on that. I am 
 clearly of opinion that the action lies as for false representation. I 
 think, though less decidedly, that it lies on the ground of their duty as 
 public carriers of passengers to act up to their public professions. But 
 I doubt whether they are answerable on a contract to do all that may be 
 found in the time-tables, if there be any thing there beyond what would 
 be implied as part of their duty as carriers. 
 
 Judgment for plaintiff. 
 
 2. FAILURE OF A RAILWAY COMPANY TO TRANSPORT ACCORDING 
 TO SPECIAL CONTRACT. 
 
 Hawcroft V. Great Northern Railway Company.* 
 English Court of Queen's Bench^ 1852. 
 
 The Right Hon. John Lord Campbell, Chief Justice. 
 Sir John Patteson, Kt., 
 
 *' John Taylor Coleridge, Kt., 
 
 " William Wightman, Kt., 
 
 " William Erle, Kt., 
 
 Justices, 
 
 Railway Company — Excursion Ticket — Special Contract.— Excursion tickets were 
 issued by the G. N. R. Co., at B., to convey passengers to L. and back, by any train 
 
 • Reported, 21 L. J. (Q. H.) 178; 16 Jur. 196; 8 Eng. Law. & Eq. 362. This case was heard 
 before Patteson and Wightman, JJ.
 
 60 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Hawcroft v. Great Northern Railway Company. 
 
 advertised for that purpose, ■within the following fourteen days. B. was not on the 
 line of the G. N. R. Co., but on that of the S. Y. R. Co., which joined the other line at 
 D. Two trains a day (morning and evening) were then advertised for the conveyance 
 back from L. in pursuance of the notice on the ticket ; but B. was not mentioned in the 
 advertisement as one of the stations at which either one of those trains would stop, 
 although D. was so mentioned. H., who had taken one of the tickets at B. and had 
 been conveyed to L., returned within the fourteen days by one of the evening trains, 
 and on arriving at D. the next morning found that there was no train for B. on that 
 day. He posted to B., and sued the company for the expense of so doing. Meld, that 
 he was entitled to recover. Semhle, a railway company are not excused from carry- 
 ing passengers according to their contract upon the ground that there is no room for 
 them in the train ; but in order to avail themselves of this answer, they should make 
 their contract conditional upon there being room. 
 
 Appeal from the County Court of Yorkshire, holden at Barnsley. 
 The action was brought to recover damages for the alleged neglect and 
 refusal of the defendants to convey the plaintiff from London to 
 Barnsley. It appeared from the case that the following facts were 
 proved or admitted on the trial : During the period of the great exhibi- 
 tion in Hyde Park, the defendants were in the habit of issuing tickets 
 for the conveyance of passengers by the Great Northern Railway, from 
 various places on the line of such railway to London and back, at a low 
 price, by certain tickets called " excursion tickets." On the 2d of 
 August, 1851, the plaintiff, who is a confectioner residing at Barnsley 
 in Yorkshire, purchased one of these tickets at the Barnsley station, 
 for which he paid 5s. , and which was in the following form : — 
 
 "GREAT EXHIBITION. 
 "Barnsley to King's Cross and back. 
 ''Third Class." 
 And upon the back of such ticket was the following notice : — 
 
 * 'Excursion Ticket. 
 
 " To return by the trains advertised for that purpose, on any day not 
 beyond fourteen days after date hereof." 
 
 The defendants advertised certain trains called "Exhibition trains " 
 as those which would leave the King's Cross station during the month 
 of August for the conveyance from London of persons holding excur- 
 sion tickets. The hours at which the trains would arrive at various 
 places on the Une of railway were mentioned in the advertisements. 
 Barnsley was not among such places ; but the times when they would 
 arrive at Doncaster were mentioned, and a passenger travelling by the 
 defendants' railway from London to Barnsley would proceed to Don-
 
 FAILURE TO TRANSPORT ACCORDING TO SPECIAL CONTRACT. 61 
 
 English Court of Queen's Bench. 
 
 caster, and be conveyed from thence to Barnsley by a train of the 
 South Yorkshire Railway Company, the Barnsley station being situate 
 on the South Yorkshire Railway and not upon the line of the Great 
 Northern, the South Yorkshire joining the Great Northern at Doncaster ; 
 hut it was agreed and admitted on the trial, that for the purposes of 
 this action the ticket should be deemed and taken to have been issued 
 by the authority and as the ticket of the defendants. The plaintiff, on 
 Saturday, the 9th of August, still being the holder of the ticket, 
 presented himself at the King's Cross station at London, shortly before 
 6 o'clock, in time for the train at 6:45 a. m., for the purpose of 
 returning to Barnsley by the train which was advertised to start at that 
 hour, and which train was admitted to be one of the trains referred to 
 in the ticket. This train left the King's Cross station for the places 
 mentioned in the advertisements ; but in consequence of the great 
 pressure of persons wishing to be passengers by it, the plaintiff was 
 unable, although he used every effort to do so, to obtain a seat. The 
 plaintiff then applied to and requested the station-master, who was 
 admitted to be the servant and agent of the defendants, to forward him 
 to Barnsley by a train which was leaving shortly after ; but he refused 
 to do so, and told the plaintiff that he must wait for another train. 
 The plaintiff proceeded on the same day by the advertised excursion 
 train which left the King's Cross station at 9:15 p. m., having been 
 kept waiting there from before 6 a. m. This train proceeded to Don- 
 caster, where it arrived on Sunday morning. No trains were run upon 
 Sunday by the South Yorkshire Company, and the plaintiff therefore 
 hired a carriage to convey him to Barnsley. The learned judge decided 
 that there was a special contract between the plaintiff and the defend- 
 ants, and he ruled that the latter were bound to carry back the plaintiff 
 from London to Barnsley by the train advertised to leave London at 
 6: 45 A. M., or by some other train within a reasonable time after that 
 liour, and that it was not a sufficient compliance with their contract to 
 bring him from London by the train at 9:15 p. m. ; and further, that 
 even assuming the not enabling him to leave London until 9:15 p. m. 
 was not a breach of contract, yet they were guilty of a breach in 
 conveying him only as far as Doncaster and not to Barnsley, and that 
 the defendants were liable for not performing their contract. The 
 defendants had therefore brought the present appeal. 
 
 Phipson (^Wordsworth with him), for the appellants. — This is a 
 question of construction, and turns wholly upon the form of the excur- 
 sion ticket. It is admitted that the ruling of the judge of the County
 
 62 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Hawcroft v. Great Northern Railway Company. 
 
 Court would be correct if the ticket is to be read as an absolute contract 
 to carry passengers by any train, on any day, without any limitation. 
 
 [Wight:man, J. — The words " on any day " mean on any of the days 
 for which trains are advertised, that the plaintiff pleases.] 
 
 Assuming that the plaintiff has the option of choosing his days, has 
 he the option of choosing any train on that day? 
 
 [WiGHTMAN, J. — But you limit him to go by the trains advertised 
 for that purpose.] 
 
 Two excursion trains went each day. The company might take him 
 by either. They were bound to caiTj' him back only by the trains 
 advertised ; there was no train advertised for Barnsley at the hour on 
 which the plaintiff started. 
 
 [WiGHTMAN, J. — This was a train advertised for the purpose of con- 
 veying back excursion-ticket holders. They know nothing of adver- 
 tisements relating to trains on the South Yorkshire line. The respondent 
 may have learned the hours from another advertisement than that which 
 contained the names of the places. He had no right to return by other 
 trains than those which were advertised, but he was not bound to see 
 how far they went. He would conclude that the appellants had taken 
 care to make all necessary arrangements with the South Yorkshire Rail- 
 way Company.] 
 
 Barnsley was not mentioned in any of the advertisements. Could 
 the company be sued if they had refused to carry a passenger when 
 there was no room for him ? They were common carriers, and bound 
 to carry safely. 
 
 [Patteson, J. — They should have made it a condition of their con- 
 tract that they would not carry unless there was room.] 
 
 Hardy (with him Hall), for the respondent, was not called upon. 
 
 Patteson, J. — The question turns upon the meaning of the contract 
 contained in the ticket. The language used is, " to return by the trains 
 advertised for that purpose ;" that means to return back to Barnsley, 
 where the ticket was taken. The advertisement says nothing as to the 
 time of arrival at Barnsley, and, being silent, the plaintiff might well 
 suppose that he would be taken there in a reasonable time after his 
 arrival at Doncaster. If any other arrangement was entered into, and 
 it was shown to have been brought to the knowledge of the respondent, 
 the result might be different. An option is given to the party who is 
 to return, whether he will go by the morning or evening train. But as 
 the company could not take him by the morning train, they should have 
 made some arrangement to carry him on to Barnsley by the evening one. ,
 
 USE OF TICKET ON DIFEEKENT PAKT OF ROUTE. 63 
 
 English High Court, Exchequer Division. 
 
 WiGHTMAN, J. — The whole question is, What was the contrac i 
 between the parties? The party taking the ticket had no right to return 
 except by the trains advertised for that purpose, but he had a right to 
 insist upon going by one of those ; and it may be that by going by 
 one of them he waived any right to object that he had not been carried 
 by a former one. He certainly ought to have been taken back to 
 Barnsley, unless he was a party to some special arrangement to the 
 contrary. 
 
 Judgment affirmed, with costs. 
 
 3. RAILWAY TICKET FOE ONE PART OF ROUTE NOT GOOD FOR 
 
 another part. 
 
 Great Western Railway Company v. Pocock.* 
 
 English High Court, Exchequer Division, November, 1879. 
 
 The Right Hon, Sir Fitzroy Kelly, Lord Chief Baron, President. 
 Sir Anthony Cleasby, Kt., 
 
 " Charles Edward Pollock, Kt., 
 
 " John Walter Huddleston, Kt., 
 
 " Henry Hawkins, Kt., 
 
 Barons. 
 
 A passengrer purchased a ticket from W. to D. and return, and on his return journey from 
 D. to W. went on to P., a station beyond, and refused to pay fare from W. to P. on tlie 
 ground that a return ticket from P. to U. was the same price as a return ticket from W. 
 to D. Held, that as soon as the passenger arrived on his return journey at W. the 
 contract between him and the company was at an end, and he must pay the fare. 
 
 This was an appeal from the decision of the County Court judge of 
 Marylebone in favor of the respondent. 
 
 The action was brought to recover 3d., the second-class fare from 
 "Westbourne Park to Paddington. The respondent took a second- 
 class return ticket from Westbourne Park to West Drayton, for which 
 he paid 2s. 6c?. On his return journey he travelled to Westbourne 
 Park and thence to Paddington, but refused to pay 3d., the fare 
 from Westbourne Park to Paddington, which was demanded by the 
 railway company, on the ground that the return fare from Padding- 
 ton to West Drayton was the same as the return fare from West- 
 
 * Beported, 28 Week. Rep. 49; 10 Cent. L. J. 81.
 
 64 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Great Western Railway Company v. Pocock. 
 
 bourne Park to "West Drayton, which he had already paid. The com- 
 pany thereupon sued the respondent in the County Court for 3d., the 
 fare demanded. The railway company now appealed against the de- 
 cision of the County Court judge in favor of the respondent. 
 
 Macmorran and Prankerd, for the respondent, showed cause. — The 
 ticket is evidence of a contract merely, and not of the terms of the 
 contract entered into between the parties. It is evidence that the pas- 
 senger has paid his fare, and is only given to the passenger for the 
 purpose of showing what he has paid. [Hawkins, J. — You say that 
 it is treated only as a receipt for 2s. 6d. I will tell you what the 
 effect of that would be. A person might take a ticket from West- 
 bourne Park to West Drayton, — he would take that as a receipt for the 
 money, — and he would then go to Bath and use that ticket from Bath 
 to Bristol and back, and when asked for 2s. 6d., the fare, he would say, 
 "Here is my receipt," and would produce his return ticket from West- 
 bourne Park to West Drayton.] 
 
 Wright (ij. B. Webster^ Q. C, with him), in support of the rule, was 
 not called on. 
 
 HuDDLESTON, B. — In spite of the ingenious argument of Mr. Macmor- 
 ran, and giving him credit for the topics which he has adduced, I think 
 that this appeal must be allowed, and that the judgment must be for the 
 appellants. This really is a question of contract ; the ticket undoubt- 
 edly contains the contract between the parties ; and that contract is 
 that, in consideration of the payment made by the respondent, the appel- 
 lants agree to carry him from Westbourne Park to West Drayton, and, 
 on the same day, to bring him back from West Drayton to Westbourne 
 Park. When he got "back to Westbourne Park the conti-act was at an 
 end. It is entirely a question of contract ; the evidence of the contract 
 is the ticket, and when the terms of the ticket are complied with the 
 contract expires, — in this case, when the respondent arrived back at 
 Westbourne Park ; and he was not entitled to travel the other distance 
 except on pa^'ment of the fare charged by the company. 
 
 Hawkins, J. — I cannot bring m}' mind to entertain a shadow of 
 doubt on the question now before us. In my judgment, it is a pure 
 question of contract, which may be put in popular language thus : The 
 company say that in consideration of 2s. Qd. we agree to carry you 
 from Westbourne Park to West Drayton and back ; the moment the 
 passenger has arrived back at Westbourne Park station the contract is 
 fulfilled. If he desires to be carried beyond Westbourne Park to Pad- 
 dington, he must enter into a new contract. The passenger in this
 
 RAILWAY TICKETS. 65 
 
 Failure to transport according to Contract. 
 
 case does not enter into a new contract, and he refuses to do so. The 
 
 company then do what they have a right to do, demand 3d., which is 
 
 the fare, and he declines to pay it. I cannot see that there can be 
 
 any question on the subject. 
 
 • Bule absolute. 
 
 NOTES. 
 
 § 1 . "WTiat the Ticket is. — The possession of a railroad ticket is not conclusive 
 evidence of the right of the holder to transportation. The circumstances may 
 be such that it will be a proper subject for investigation whether the holder of 
 the ticket has not got possession of it by fraud, or whether it has not been pre- 
 viously used.^ The possession, however, is primd, facie evidence that the holder 
 has paid the regular price for it, and of his right to be transported at some time 
 between the places specified thereon on some passenger- train. If it is unmu- 
 tilated, the presumption is that it has never been used for that purpose." 
 
 A ticket cannot be said to be either the contract or to contain the contract. 
 The settled opinion is that it is a mere receipt, token, or voucher, adopted for 
 convenience, to show that the passenger has paid his fare from one place to 
 another.^ A contract for transportation may, therefore, be proved indepen- 
 dently of the terms of the ticket.* 
 
 § 2. Failure to transport according to Contract. — The failure or refusal of 
 the carrier to receive and transport the passenger confers upon the latter a right 
 of action for consequential damages.^ In general, such an action is for the 
 breach of the contract of transportation,^ but the action may be in tort, for the 
 violation of a public duty to carry those who present themselves for passage.' 
 Thus, the respondent's vessel having failed to come to take passengers who had 
 procured tickets and were ready to embark, the carrier was held responsible for 
 the consequential delay and damage. Said Nelson, J. : "The winds and waves 
 or weather are no excuse for the non-fulfilment of a contract as to the time of 
 the commencement of the voyage. If these circumstances had been intended 
 
 ' Davis V. Great Western R. Co., 20 Upper ^ Bennett v. Dutton, ante, p. 2; Howard 
 
 Canada Q. B. 27. v. Cobb, 19 Law Reporter, 377; Hawcroft v 
 
 - Fieri;. Finch, 24 Barb. 514. Great Northern R.Co.,8 Kng. Law & Eq. 362 
 
 8 Quiinby v. Vanderbilt, 17 N. Y. 306; Raw- s. c. 16 Jur. 196; 21 L. J. (Q. B.) 178; ante, p 
 
 son V. Pennsylvania R. Co., 48 N. Y. 212; 59; Indianapolis etc. R. Co. w. Birney, 71 111 
 
 Johnson v. Concord R. Co., 46 N. H. 213 ; Gor- 391. 
 
 don W.Manchester etc. R. Co., 52 N. H. 596; « "The action is in reality upon a contract 
 
 The State v. Overton, 24 N. .1. L. 435, 438; it is commonly said to be founded upon a 
 
 Boicev. Hudson Riv.R. Co. ,61 Barb. 611 ; Bar- duty, but it is a duty arising out of a con 
 
 ker V. Coflin, 31 Barb. 556; Elmore v. Sands, tract." Per Blackburn, J., in Hobbs v. Lon 
 
 54 N. Y. 512, 515; Henderson v. Stevenson, don etc. R. Co., L. R. 10 Q. B. Ill, 119. 
 
 L. R. 2 Sc. App. 470, per Lord Halherley. ' Bennett v. Dutton, supra; Heirn v. Mc 
 
 * Van Buskirk v. Roberts, 31 N. Y. 661; Caughan, 32 Miss. 17; New Orleans etc. R 
 
 Quimby v. Vanderbilt, supra. Co. v. Hurst, 36 Miss. 660.
 
 G6 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Notes. 
 
 as elements of it, the}' should have been expressly provided for by the owner, 
 and then all parties would have understood it." i A common c:i.rier engaged in 
 carrying the United States mail, and also in the transportation of passengers, 
 wrote a letter to a postmaster at one of the offices from which he was accustomed 
 to carry the mail, informing him that on a certain day one of his vessels (whicl: 
 did not ordinarily stop and receive a mail or passengers at that place) would 
 stop there ; and also requesting the postmaster to have a mail in readiness, and 
 to "advise all who may feel interested in the above." It was held that the 
 expression above quoted did not refer simply to persons interested in the arrival 
 and departure of the mail, but, under the circumstances, included those who 
 wished to take passage on the vessel; and further, that it was competent to 
 introduce parol evidence of the circumstances under which the letter was 
 written, and of the nature of the business in which the defendant was engaged, 
 in order to show that passengers were meant to be included in those having 
 an interest in the arrival and departure of the boat. Therefore the plaintiff and 
 his wife, who relied upon the public notice given in consequence of the letter to 
 the postmaster, and went upon the pier late at night when the vessel was 
 expected to arrive and remained there until morning, and got no passage in 
 consequence of the failure of the vessel to appear, were held to have a cause 
 of action for breach of the duty which the carrier as such owed to the public." 
 
 Carrying a passenger beyond his destination in disregard of his request upon 
 reaching this place to be there put off, will afford a good ground for an action.* 
 And this is so although no bodily injury, mental suffering, insult, oppression, or 
 pecuniary loss be shown ; and though these elements of damage are disclaimed, 
 the passenger acquires a teclmical right to the recovery of nominal damages.* 
 In order to afford an opportunity to passengers to leave the train at the place of 
 destination, the company is bound to have announced the names of the different 
 stations upon the arrival of the train, and then stop a sufficient length of time to 
 allow passengers to get off without danger or injury to their persons.^ 
 
 It is the duty of the passenger to ascertain what train will stop at his destina- 
 tion. Therefore a passenger who purchased a ticket to a station at which local 
 trains stopped but through ti'ains did not was not entitled to enter the first train 
 due after he purchased the ticket and demand of the conductor that it stop at 
 his station, when by the regulations of the company it was not permitted to do 
 so, as it was a through train.^ A passenger was directed by an ageut of the carrier 
 
 1 Howard v. Cobb, 19 Law Reporter, 377. 660; Porter v. The New England, 17 Mo. 290; 
 See also Williams v. Vandeibilt, 28 N. Y. 217 Pittsburgh etc. R. Co. v. Nuzum.SO lud. 141 : 
 (affirming s. c. 29 Barb. 191) ; Van Buskirk v. Mobile etc. R. Co. v. McArthur, 4:5 Miss. ISO: 
 Roberts, 31 N. Y. 661; West v. Str. Uncle Memphis etc. R. Co. v. Whitfield, 44 Miss. 
 Sam, 1 McAll. 505; Ward v. Vanderbill, 4 466; Sunday «. Gordon, 1 Blatchf. & H. Adm. 
 Abb. App. Dec. 521. 569. 
 
 2 Heirn v. McCaughan, 32 Miss. 17. See < Thompson t>. New Orleans etc. R. Co., 50 
 also Denton v. Great Northern R. Co., ante. Miss. 315. See also New Orleans etc. R. Co. 
 p. 53. If the officer of a boat expressly con- v. Statham, 42 Miss. 607. 
 
 tracts to land a passenger at a particular ° Southern R. Co. v. Kendrick, 40 Miss, 
 
 point, with a knowledge of the danger of 375; Pennsylvania R. Co. v. Kilgore, 32 Pa. 
 
 landing there, such danger will afford no St. 294; New Orleans etc. R. Co. i'. Statham, 
 
 excuse for a failure to comply with the con- supra. 
 
 tract. Porter v. The New England, 17 Mo. 290. « Pittsburgh etc. R. Co. v. Nuzuni, 50 Ind. 
 
 3 New Orleans etc. R. Co. v. Hurst, 36 Miss. 141. See also Ohio etc. R. Co. v. Applewhite,
 
 CARRYING PASSENGER BEYONl> HIS DESTINATION. 67 
 
 Kunnmg Trains on Schedule Time. 
 
 to a train then standing in his sight, as one which would convey him to L., his 
 destination. That train, after running one hundred and fifty miles, deflected at 
 S. to a branch road not passing through L., but was followed an hour afterwards 
 by another train, starting from the same place, which passed through S. and thence 
 on to L. The passenger should have got off at S. and waited for this last train. 
 It was held that the passenger was in fault for being miscarried if at or before 
 reaching the point of divergence the carrier used such means as would have con- 
 veyed to a person of ordinary intelligence, using reasonable care and attention, 
 information of the necessity of his transferring himself to the second train. i If 
 the passenger, in such a case, discovered the mistake so that he might have re- 
 turned to the junction without charge by another train, in season to have taken 
 the train going to his destination, he ought to have done so. His refusal to 
 leave the cars or pay his fare on the route he was then travelling justified his 
 expulsion from the train.^ 
 
 It is undoubtedly the duty of the carrier to provide passengers with seats,^ and 
 they cannot be left standing without a breach of the contract of carriage ; there- 
 fore a passenger may decline to surrender his ticket until he has been furnished 
 with a seat. But he cannot do this and remain upon the train. He should quit 
 the train at the first suitable opportunity, and bring action upon his contract. 
 He cannot insist upon riding in a standing position until a seat becomes vacant.* 
 
 § 3. Duty to run Trains on Schedule Time. — It is the duty of a railroad 
 company to exercise due and reasonable precaution and foresight that their trains 
 shall arrive and depart from stations at the time advertised in the time-tables. 
 Therefore a company whose line connects with another, and which has been 
 accustomed to run its trains in connection with those of the latter, and continues 
 to advertise to do so although the trains no longer run in connection with each 
 other, vrill be responsible in damages to a person who has made his arrange- 
 ments accordingly, and only learned that the trains did not make connections 
 when he applied for his ticket.^ But the mere fact that a passenger has a ticket 
 with the imprint "Cardiff to Newcastle, via Midland Railway," does not of 
 itself prove a contract or duty whereby the company isr;uing such ticket is bound 
 to have their train run in connection with a train upon the " Midland Railway " 
 running to Newcastle. Neither will representations of the train-men have this 
 effect. The time-tables of the company should be introduced for this purpose.* 
 But, in the absence of a special contract for transportation, railroad companies 
 
 52 Ind. .540; Chicago etc. R. Co. v. Randolph, 2 Barker v. New York etc. R. Co., supra; 
 
 .").S 111. 510; Fink v. Albany etc. R. Co. ,4 Lans. s. c. sub nom. Page v. New York etc. R. Co., 
 
 147. Even though in such a case the c >n- 6 Ducr, 523. 
 
 ductor takes up the ticket of the passenger, 3 Bass v. Chicago etc. R. Co., 36 Wis. 450; 
 
 and agrees to let the passenger off at the «. c 39 Wis. 636; 42 Wis. 654; Willis v. Long 
 
 station as requested, this will not bind the Island etc. R. Co., 34 N. Y. 670; s. c. 32 Barb, 
 
 company to do so. The duty of the conduc- 399. 
 
 tor is to run the train according to the. pub- ■> Davis v. Kansas etc. R. Co., 53 Mo. 317. 
 
 lie arrangements, and he has no power to * Denton v. Great Northern R. Co., 5 F.l. 
 
 change them. Ohio etc. R. Co. u. Hatton, 60 & Bl. 860, a?i<e, p. 53. Sec also Hamlin v. 
 
 Ind. 12; s. c. 6 Cent. L. J. :iS9. See also Chi- Great Northern R. Co., 1 Hurl. & N. 408; 
 
 cago etc. R. Co. v. Randolph, supra Heirn v. McCaughan, 32 Miss. 17. 
 
 I Barker v. New York etc. R. Co., 24 N. Y. o Hurst v. Great Western R. Co., 19 C. 15. 
 
 .509. Compare Hobbs v. London etc. R. Co., (N. 8.) 310; s. c. 11 Jur. (N. S.) 730; 34 L. J. 
 
 I.. R. 10 Q. B. 111. (C. P.) 264 ; 13 Week. Rep. 950 ; 12 L. T. (.v. s.)
 
 G8 OBLIGATION TO CARRY ACCORDING TO CONTRACT. 
 
 Notes. 
 
 cannot be held to be warrantors or insurers that trains shall arrive and depart 
 precisely as indicated by the time-table. The publication of a time-table imposes 
 upon the company only the obligation to use due care and skill to accomplish this 
 result. Therefore, where the train of the defendants was on account of circum- 
 stances which could not be ordinarily anticipated greatly overloaded, so that 
 it Avas necessary to drive past one of its stations, on an up-grade, without 
 stopping, whereby the plahitiff, a season-ticket holder, failed to get transpor- 
 tation as usual, it was held that the company were not liable, as they had done 
 all that due care and skill could suggest to transport the plaintiff punctually, 
 especially as an extra train had been sent back for the accommodation of the 
 plaintiff and others who had been inconvenienced.^ Any detention which is due 
 to wilful and unreasonable delay of the conductor in charge of the train is 
 properly attributable to the company itself, upon the familiar principle that 
 if servants execute the business of their master in this manner, he will be held 
 responsible. 2 
 
 Changes, when made in the time-tables, should be given all the publicity of the 
 tables themselves ; therefore, where the railroad company was in the habit of 
 keeping a standing advertisement of its time-tables in the leading city papers, it 
 was held that it was not sufficient notice to the patrons of the road of a change 
 in the time of running one of its trains on a certain evening, that printed notices 
 to this effect were posted in the cars and stations of the road on the day of the 
 change and for a day or two previous. Although the plaintiff rode upon the 
 cars on the day of the change, no legal presumption that he saw the notice arose 
 from the fact of their being posted up.^ 
 
 § 4. Special Contracts for Carriage. — Special contracts may be made between 
 the carrier and passenger which will superadd to his general liability. Thus, 
 although there is no obligation incumbent on the carrier to transport a person 
 tendering the customary fare upon Sunday, yet an express contract may be 
 made by virtue of which the carrier will be bound to do so.* Ordinarily, the 
 carrier would be excused from attempting to laud aj)assenger under circum- 
 stances of danger, but if this condition of things is known to the carrier's 
 officer at the time the agreement to transport is made, a failure to do so will 
 afford a cause of action.^ If a passenger has contracted for a particular seat, he 
 cannot be compelled to take another,^ and he may take his seat at any time 
 during the journey, and the carrier's agent is not justified in filling his place 
 with another passenger.' The conductor of a railway train has no authority to 
 make an agreement with a passenger in violation of the public arrangements for 
 operating the road.* Passengers riding upon commutation tickets are bound 
 strictly by the terms of the contract in such cases, and if the contract requires 
 
 G34. In England the companies now gener- * Weed v. Panama R. Co., 17 N. Y. 362. 
 
 ally protect themselves against the conse- * Sears v. Eastern R. Co., 14 Allen, 4S3. 
 
 quences of any irregularity in the running ■* Walsh v. Chicago etc. R. Co., 42 Wis. 
 
 of their trains, by inserting notices in their 23. 
 
 time-tables to the effect that they do not * Porter v. The New England, 17 Mo, 
 
 warrant that the trains will arrive and depart 290. 
 
 at the precise times indicated. Per Bovill. C. <> Long v. Home, 1 Car. & P. 610. 
 
 J., in Lord v. Midland R. Co., L. R. 2 C. P. 345. ' Ker r. Mountain, 1 Esp. 27. 
 
 1 Gordon v. Manchester etc. R. Co., 52 N. 8 Ohio etc. R. Co. v. Halton, 60 Ind. 12; 
 
 1 1. ^96. s. c. 6(;ent. L. J. 389.
 
 SPECIAL CONTRACTS FOR CARRIAGE. 
 
 69 
 
 Right to stop off and resume Journey. 
 
 them to produce such tickets whenever requested, they must do so; ^ and if by 
 the terms of the contract the ticket has expired, by limitation of time or other- 
 wise, although the number of miles' travel guaranteed by its terms have not been 
 exhausted, the company will not be obliged to afford further transportation upon 
 it.2 A railroad company may by special contract restrict the holders of a certain 
 class of tickets to a special train, but if the ticket is of such a character in its 
 general appearance as to give the holder no notice of this fact, and he has no 
 information of it, the company will not be justified in ejecting the holder of 
 such a ticket from its regular trains.^ 
 
 If a railway company has made a special contract for the transportation of 
 passengers upon excursion tickets over their line in connection with another 
 line, it will be responsible for the damages attending its failure to run trains on 
 the return trip m connection with the other line as advertised.* 
 
 § 5. Right to stop off and resume Journey on the same Ticket. — It may 
 be stated as a general rule that the contract for conveyence entered into between 
 the carrier and the passenger is an entirety. Neither party can require "the other 
 to perform it in parts. The passenger has no right to leave the conveyance at 
 an intermediate point, without the carrier's consent, and afterwards demand that 
 
 1 Bennett v. Railroad Co., 7 Phila. 11; 
 Downs V. New York etc. R. Co., 36 Conn. 
 287; Ripley v. New Jersey etc. Transp. Co., 
 31 N. J. L. 388; Crawford v. Cincinnati etc. 
 R. Co., 26 Ohio St. 580; Woodard v. East- 
 ern Counties R. Co., 30 L. J. (M. C.) 196. 
 But see Maples v. New York etc. R. Co., 38 
 Conn. 557. In Cooper v. London etc. R. Co., 
 4 Exch. Div. 88, the plaintiff bought from 
 the defendant company a season ticket 
 entitling him to travel by their railway for 
 one month, paying the usual charge for such 
 a ticket and ten shillings deposit, and 
 agreed to be bound by certain conditions. 
 The fourth condition was that the ticket " is 
 to be considered as the property of the 
 company, to be delivered up at the secre- 
 tary's office on the day after expiry, or on 
 forfeiture." The sixth condition was that 
 "the ticket and all benefit and advantages 
 thereof, including the deposit, shall be 
 absolutely forfeited to the company if it 
 shall be lost, or in case of any breach of any 
 of the above conditions." Some few days 
 " after the expiry" the plaintiff delivered 
 up the ticket and claimed the deposit, 
 payment of which was refused on the 
 ground that the ticket should have been 
 presented on the day after expiration. It 
 was held that each of the above condi- 
 tions was a condition precedent to a right 
 to the return of the deposit; and that, as 
 the ticket had not been delivered up " on 
 the day after expiry," the conditions had 
 not been performed, the deposit was for- 
 
 feited, and the plaintiff could not maintain 
 the action. 
 
 2 Powell V. Pittsburgh etc. R. Co., 25 Ohio 
 St. 70; Terre Haute etc. R. Co. v. Fitzgerald, 
 47 Ind. 79; Lillis v. St. Louis etc. R. Co., 64 
 Mo. 464; Sherman v. Chicago etc. R. Co., 40 
 Iowa, 45. 
 
 3 Marony v. Old Colony etc. R. Co., 106 
 Mass. 153; Nolan v. New York etc. R. Co., 
 9 Jones & Sp. 541. In the late case of 
 Crosby v. Maine Central R. Co., 69 Me. 418, 
 8. c. 8 Reporter, 819, the facts were that 
 a band of musicians was employed by the 
 defendant to attend an excursion from the 
 town of Dexter to Belfast, their compensa- 
 tion being the sum of $'25 and a ticket for a 
 lady to each member of the band. The de- 
 fendant's agent prepared tickets for the 
 ladies of the meinbers of the band, differing 
 from common tickets, being pieces of card- 
 board on which was printed "Maine Cen- 
 tral R. R., July 30, 1877, Dexter," and nothing 
 more. A brother of the plaintiff, who was a 
 member of the band, gave one of the tickets 
 above described to the plaintiff, who claimed 
 the right to ride upon it, and attempted to 
 do 80, but was compelled to leave the train 
 before it reached its destination. In an 
 action for this expulsion, the court below 
 charged that the plaintiff had no right to 
 passage unless by virtue of a special con- 
 tract; the ticket produced was for a lady, 
 and hence he could claim no rights under it. 
 Exceptions to this charge wci-e overruhMl. 
 
 * Hawcroft v. Gt. Nor. R. Co., ante, p. 59.
 
 70 OBLIGATION TO CAUKY ACCORDING TO CONTRACT. 
 
 Notes. 
 
 the contract be completed according to his convenience.' Such a rule as this is 
 necessaiy for the prevention of fraud.^ The passenger, ou resuming his journey 
 after leaving a railroad train without permission of the conductor, can claim no 
 rights under his ticket. The contract for carriage is broken by his thus leaving 
 the train, and he becomes a trespasser, and may be rightfully ejected from the 
 train.^ The production of a conductor's check or ticket, unless it expressly 
 authorizes the passenger to stop over at such a place, docs not enhance the pas- 
 senger's rights in the premises. Such a check is simply evidence that the fare 
 has been paid for a continuous journey.* Neither will it avail the passenger, 
 under such circumstances, that he was told by an agent of the company at a way- 
 station that he would be at liberty to leave the train and proceed on his journey 
 ou another, and that a conductor's check which he held was "good until taken 
 up." The presumption is that a ticket-agent at a way-station has no authority 
 to change or modify contracts between the company and its through passengers ; 
 and the onus of rebutting such presumption rests with the party alleging the 
 contrary.* A passenger holding a ticket bearing upon its face the stipulation 
 " Good for this day and train only " will not be entitled to leave the train after 
 his journey has commenced, and afterwards, though ou the same day, claim pas- 
 sage on this ticket.8 Even though it has been customary upon a certain railroad 
 to allow passengers to stop over at stations intermediate upon their journey, 
 without detriment to their right to resume travel upon the same ticket, yet 
 the railroad company may at any time make a regulation to the contrary, and a 
 passenger will be bound by such regulation whether he has notice of it or not.^ 
 
 § 6. Limited Tickets. — A railway company may make a regulation limiting 
 the time within which the ticket will be received for passage, at the expiration 
 of which time the holder can claim no rights under it.® And whei'e a ticket 
 
 1 Stone V. Chicago etc. R. Co., 47 Iowa, 82; which such train stops, and that such ticket 
 
 •s. c. 10 Ch. Leg. X. 78; 6 Reporter, 489; shall be good for a passage, as above, for six 
 
 Hamilton v. New York etc K. Co., 51 N. Y. years from the day it is lirst used. Dryden 
 
 100; Cheney v. Boston etc. R. Co., 11 Mete. v. Grand Trunk R. Co., 60 Me. 512. 
 
 121 ; Cleveland etc. R. Co. v. Bartram, 11 Ohio - Beebe v. Ayers, supra. 
 
 St. 457; The State v. Overton, 24 N. J. L. 435; ^ Dietrich v. Pennsylvania R. Co., 71 Pa. 
 
 Johnson v. Concord R. Co., 46 N. H. 213; St. 432; Vankirk v. Pennsylvania R. Co., 76 
 
 Beebe v. Ayers, 28 Barb. 275; Drew v. Ceu- Pa. St. 66. As to what effect declarations of 
 
 tral Pacific R. Co., 51 Caj. 425; Briggs v. the company's ticket-seller or conductor in 
 
 Grand Trunk R. Co., 24 Upper Canada Q. regard to the right to stop over wiU have 
 
 B. 510; Craig v. Great Western R. Co., 24 upon the contract for carriage, see Burnham 
 
 Upper Canada Q. B. 504; Barker v. Coflin, v. Grand Trunk K. Co., 63 Me. 298; Denny v. 
 
 31 Barb. 556; Breen v. Texas etc. R. Co., 50 New York etc. R. Co., 5 Daly, 50; Yankirk r. 
 
 Texas, 43; Gale v. Delaware etc. R. Co., 7 Pennsylvania R. Co , supra. 
 
 Hun, 670; Oil Creek etc. R. Co. v. Clark, 72 * The State v. Overton, 24 N. J. L. 435; 
 
 Pa. St. 231; Terry r. Flushing etc. R. Co., 13 Cheney v. Boston etc. R. Co., 11 Mete. 121; 
 
 Hun, 359; Dunphy v. Erie R. Co., 10 Jones & McClure v. Phila. etc. R. Co., 34 Md. 532. But 
 
 Sp. 128. But in some States this matter is see Palmer v. Railroad Co., 3 So. Car. .580. 
 
 regulated by statute. In Maine it is enacted = McClure v. Philadelphia etc. R. Co., 
 
 (Pub. Laws 1871, chap. 223) that no railroad supra. 
 
 company shall limit the right of a ticket- ^ Gale v. Delaware etc. R. Co., 7 Hun, 670. 
 
 holder to any given train; but that such ^ Johnson i'. Concord etc. R. Co., 46 N. H. 
 
 ticket-holder shall have the right to travel 213. See also Dietrich r. Pennsylvania B 
 
 on any train, whether regular or express Co., 71 Pa. St. 432. 
 
 train, and to stop at any of the stations at * HUl v. Syracuse etc. R. Co., 63 X. Y. 101;
 
 RIGHT TO STOP OFF AXD RESUME JOURNEY. 71 
 
 Limited Tickets. 
 
 contained the stipulation " Good for this day only," the mere verbal declara- 
 tions of the company's ticket-agent, made subsequent to the purchase of such 
 ticket, as to its being good at any time thereafter, will not constitute a valid 
 contract in the absence of proof that the agent had authority to make an oral 
 contract for the company, varying the one indicated by the ticket.^ A commuta- 
 tion ticket good for a certain number of miles of travel, but limited by its terms 
 to be used within a certain time, is worthless after the expiration of such time, 
 and the holder cannot claim transportation under it, although the number of 
 miles of travel guaranteed by it have not yet been exhausted.^ Similarly, a 
 commutation ticket good for one thousand miles' travel upon two roads forming 
 one continuous line (issued by a company owning one road and leasing the 
 other), three hundred miles to be travelled upon one road and seven hundred 
 miles to be travelled upon the other, as indicated by differently colored figures, 
 does not entitle the holder to travel upon a division of the road after the number 
 of miles specified for that division have been entirely punched out of the ticket, 
 although there yet remain upon the ticket figures for the other division, not 
 punched out, amounting to the number of miles for which the ticket is offered.^ 
 But a ticket good for a limited time is not to be regarded as good at all events, 
 in whatever manner used. It is good, subject to other regulations of the com- 
 pany. Thus, a ticket bearing upon its face " Good for this day and train only " 
 is good only for one continuous passage upon the day of its date.* If a ticket 
 has ceased to be good for the reason that it is a limited ticket and the limitation 
 has expired, or because the holder has forfeited his rights under it, the railroad 
 company does not waive its right to refuse to carry the holder of it merely 
 because the ticket has been afterwards punched by a baggage-man,= or even 
 recognized by one of the conductors of the company, and the holder permitted 
 to ride upon it.^ 
 
 Farewell V. Grand Trunk etc. R. Co., 15 Upper 2 Powell v. Pittsburgh etc. R. Co., 25 Ohio 
 
 Canada C. P. 427; Ehnoie v. Sands, 54 N. Y. St. 70; Sherman v. Chicago etc. R. Co., 40 
 
 512; Barker v. Coflin, 31 Barb. 5.56; Boice v. Iowa, 45; Lillis v.Qt. Louis etc. R. Co., 64 Mo^ 
 
 Hudson River R. Co., 61 Barb. 611; Boston 464. 
 
 etc. R. Co. V. Proctor, 1 Allen. 267 ; Shedd v. a TeiTe Haute etc. R. Co. v. Fitzgerald, 47 
 
 Troy etc. R. Co., 40 Vt. 88 ; The State v. Camp- Ind. 7'.i. 
 
 bell, 32 N. J. L. 309; Weiitz v. Erie R. Co., 5 1 Gale v. Delaware etc. R. Co., 7 Hun, 670. 
 
 Thomp. & C. 5.56; s. c. 3 IIuu, 241; Nelson v. 6 Wentz v. Erie R. Co., 5 Thomp. & C. 556; 
 
 Long Island etc. R. Co., 7 Ilun, 140; Brigg.s s. c. 3 Hun, 241. 
 
 V. Grand Trunk R. Co., 24 Upper Cannda Q. e Dietrich r. Pennsylvania R. Co., 71 Pa. 
 
 B. 510. But it has been held that a ticket St. 432; Sherman v. Chicago etc. R. Co.. 40 
 
 having the words "Good this trip only" Iowa, 45; Wakelicld i-. South Bostou R. Co., 
 
 ui)on its face, entitles the holder to a pas- 117 Mass. 544; Johnson r. Concord R. Co., 46 
 
 eage on a subsequent day as well as the d;iy N. H. 213; Hill v. Syracuse etc. R. Co., 63 N. 
 
 it bears date, for the reason that such words Y. 101; Nolan v. New York etc. R. Co., 9 
 
 do not relate to time, but to a journey. Jones & Sp. 541; Stone v. Chicago etc. R. 
 
 Pier V. Finch, 24 Barb. 514. Co., 47 Iowa, 82 ; Keeley v. Boston etc. R. Co., 
 
 ' Boice V. Hudson River R. Co., 61 Barb. 67 Me. 163; s. c. 6 Cent. L. J. 382; 17 Alb. L. J. 
 
 611. See also McClure v. Phila. etc. R. Co., :}66. But see Cunningham v. Grand Trunk 
 
 34 Md. 632. B. Co., 9 Lower Canada Jur. 57.
 
 CHAPTER lY. 
 
 OF THE OBLIGATION OF THE CARRIER TO FURNISH SAFE 
 AND CONVENIENT STATIONS AND APPROACHES. 
 
 Leading Cases: 1. Toomey v. London, Brighton, and South Coast Bailwatf 
 Company. — lujuriesto passengers from defects in the 
 carrier's stations and grounds. 
 
 2. Cornman v. Eastern Counties Bailway Company. — The 
 
 same subject. 
 
 3. Longmore v. Great Western Railway Company. — The same 
 
 subject. 
 
 4. Nicholson v. Lancashire and Yorkshire Bailway Company. — 
 
 The same subject. 
 6. Crofter v. Metropolitan Bailway Company. — The same 
 subject. 
 
 6. McDonald v. Chicago and North- Western Bailroad Com- 
 
 2mny. — The same subject. 
 
 7. Pittsburgh, Fort Wayne, and Chicago Bailroad Company v. 
 
 Brigham. — The same subject. 
 
 NOTES^ § 1. The extent of this duty. 
 
 2. To whom this duty is owed. 
 
 3. Illustrations of negligence in this particular. 
 
 1. INJURIES TO PASSENGERS FROM DEFECTS IN CARRIER'S STA- 
 tions and grounds. 
 
 Toomey v. London, Brighton, and South Coast Railway 
 
 Company.* 
 
 English Court of Common Pleas., 1857. 
 
 The Right Hon. Sir Alexander James Cockburn, Kt., Lord Chief Justice. 
 Sir Cresswell Cresswell, Kt., 
 
 " Edward Vaughan Williams, Kt., 
 
 " Richard Budden Crowder, Kt., \ Justices. 
 
 " James Shaw Willes, Kt., 
 
 " John Barnard Byles, Kt., 
 
 Injury to Passenger at Railway Station. — On the platform of a railway station there 
 were two doors in close proximity to each other; the one for necessary purposes had 
 
 * Reported, 3 C. B. (n. s.) U6. 
 (72)
 
 DEFECTIVE KAILAVAY STATIONS. 73 
 
 English Court of Common Pleas. 
 
 painted over it the worrls "For gentlemen," the other had over it the words "Lamp- 
 room." The plaintiff, having occasion to go to the urinal, inquired of a stranger where 
 he should find it, and, having received a direction, by mistaJie opened the door of the 
 "lamp -room," and fell down some steps and was injured. In an action against the 
 railway company, it was held that, in tlie absence of evidence that the place was 
 more than ordinarily dangerous, the judge was justified in nonsuiting the plain- 
 tiflf, on the ground that there was no evidence of negligence on the part of the 
 company. 
 
 This was an action in whicli the plaintiff sought to recover damages 
 against the London, Brighton, and South Coast Railway Company for 
 an injury sustained by the plaintiff from alleged negligence on the part 
 of their servants. 
 
 The declaration stated that before and at the time of committing of 
 the grievances thereinafter mentioned the defendants were possessed of 
 a public railway station, to wit, at Forest Hill, for the reception of pas- 
 sengers in and by the defendants' railway, for the profit and advantage 
 of the defendants ; and by the reason of the possession and use of the said 
 railway station by the defendants for the purpose aforesaid, they ouglit 
 to have kept the same in a reasonably safe and secure condition, and 
 so as not to be dangerous to persons lawfully and properly using the 
 same ; nevertheless the defendants failed in such duty, and, by means 
 of the mere neglect and default of the defendants in that behalf, the 
 plaintiff, who was lawfully in and using the said station as a passenger 
 of the defendants and with their permission and for their profit and 
 advantage, fell through a door which the defendants there carelessly^ 
 negligently, and improperly left open and unguarded in the said station, 
 and which was, by the neglect and default of the defendants in that 
 behalf, dangerous to persons lawfully and properly using the same, into 
 a deep cellar or hole, and thereby sustained divers bodily injuries and 
 became permanently wounded in health, and disabled from following 
 his trade of hawker or otherwise earning his living, and was put to 
 expense, and spoiled his clothes which he had on, and lost divers of his 
 goods and money which he had with him when lie fell, and was and is 
 otherwise injured. And the plaintiff claimed £500. 
 
 The defefidants pleaded not guilty. The cause was tried before 
 Cresswell, J., at the first sitting at Westminster in this term. The 
 facts were as follows : The plaintiff, a poor and illiterate person, who 
 carried on the employment of a hawker, went to the Forest Hill station 
 of the London, Brighton, and South Coast Railway for the purpose of 
 proceeding to London by the 10:30 p. m. train. Whilst waiting there, 
 he inquired of a person on the platform, unconnected with the railway, 
 where he should find an urinary. This person told him to go to the right.
 
 74 DUTY AS TO STATIONS AND APPROACHES. 
 
 Toomey v. London, Brighton, and South Coast Railway Company. 
 
 He did so, aud found two doors, upon one of which was painted the 
 words "For gentlemen," and upon the other the words "Lamp-room ; " 
 there being a light over the former, but none over the latter. The 
 plaintiff, being in a hurry, and unable to read, opened the wrong door, 
 stepped forward, and fell down some steps, breaking two of his ribs 
 and otherwise seriously hurting himself. There was no evidence as to 
 the descriptiiju of the steps down which the plaintiff fell, nor as to the 
 state in which tiie door of the lamp-room was ordinarily kept ; but the 
 plaintiff's son stated that when he went some time after the accident 
 to look at the place, he found the door locked. 
 
 On the part of the defendants it was submitted that there was no 
 evidence to go to the jury of negligence, and that the accident was 
 attributable entirely to the plaintiff's own want of caution in going 
 hastily and in. the dark through a strange door. 
 
 The learned j udge was of this opinion ; and the plaintiff was non- 
 suited, with leave to move to enter a verdict for £35 (agreed damages) 
 if the court should be of the opinion that there was evidence which 
 ought to have been submitted to the jury. 
 
 Pigott, serjt., now moved accordingly. — The question is whether 
 there was any evidence of negligence on the part of the company or 
 their servants ; if there was, it should have been left to the jury. Rail- 
 ways are constructed for the use of all classes of persons, whether 
 literate or otherwise. Travellers of all sorts use them at all times ; and 
 the rapidity with which things are conducted at the stations leaves so 
 little time for reflection, that it is incumbent on the companies so to 
 order them as to prevent the possibility of an accident like this occur- 
 ring. This is not an action for the breach of a common-law duty, but 
 an action of tort founded on contract, as was said by IVIadle, J., in 
 Martin v. Great Northern Railway Company ^^ where an action was 
 held to lie against the defendants for insufficiently lighting a station, 
 wiiereby the plaintiff, in running across the railway to get to a train, 
 fell over a switch-handle and was injured. [Williams, J. — If the 
 plaintiff had taken ordinary care, the accident would not* have hap- 
 pened. He should not have gone so hastily through a strange door.] 
 He could not expect a door in such a situation to lead him to any 
 danger. The door should have been kept locked. Suppose it had been 
 made to open inwards, and a person leaning against it fell through, 
 would it be any answer on the part of the company to say that the door 
 
 1 16 C. B. 179.
 
 DEFECTIV?: RAILWAY STATIONS. 75 
 
 Eunlish Court of Common Pleas. 
 
 was not intended for people to lean against? In Taylor on Evidence'^ 
 it is said: ''Questions of reasonable skill or care, clue diligence, and 
 <fross negligence must, in the great majority of instances, be determined 
 liy the jury, since the judges can rarely have materials which will enable 
 tliem to decide such questions by rules of law. Thus, if an action 
 be brought against a surgeon for negligence in the treatment of his 
 patient, — per Taunton, J., in Doorman v. Jenkins,'^ — or against a 
 gratuitous bailee for gross carelessness in losing the property intrusted 
 to his care, 3 what law can possibl}' define whether such and such con- 
 duct amounts to sufficient negligence on the part of the defendant to 
 entitle the plaintiff to a verdict? In these and the like cases, therefore, 
 the question has usually been left entirely to the jury ; and even when 
 tliey have found a verdict in opposition to the opinion of the presiding 
 judge, the court has generally refused to grant a new trial." This is 
 not like the case of negligence on the part of an attorney, which is a 
 mixed question of law and fact. 
 
 Williams, J.^ — I am of the opinion that there should be no rule in 
 this case. I think there was no evidence of negligence on the part of 
 the company or their servants which ought to have been submitted to 
 tlie jury. It is not enough to say that there was some evidence; for 
 every person who has had any experience in courts of justice knows 
 very well that a case of this sort against a railway company could only 
 be submitted to a jury with one result. A scintilla of evidence, or a 
 mere surmise that there may have been negligence on the part of the 
 defendants, clearly would not justify the judge in leaving the case to 
 the jury; there must be evidence upon which they might reasonably 
 and properly conclude that there was negligence. All that appeared 
 was, that the plaintiff inquired of a stranger the way to the urinal, and 
 being told to go in a particular direction where there were two doors, 
 unfortunately opened the wrong one, and through his own carelessness 
 fell down some steps. If there had been any e\idence to show that 
 these steps were more than ordinarily dangerous, that possibly might 
 liave led to a different conclusion. But all that appears is that the 
 door in question led down some steps into a room which was used 
 for the purposes of the company and not for the convenience of 
 the public. I cannot say that there was such evidence of negligence 
 in the defendants as the learned judge was bound to leave to the jury. 
 
 > VoL 1 (2(1 ed.). p. 44, § 31- * Cackburn, C. J., and Crowder, J., being 
 
 « 2 Ad. & E. 261; «. c. 4 Nev. & M. 174. shareholders in tlie company, declined to 
 
 * Jbid, take part in the diacussion.
 
 76 DUTY AS TO STATIONS AND APPROACHES. 
 
 Cornman v. Eastern Counties Railway Company. 
 
 WiLLES, J. — I am entirely of the same opinion. In order to estab- 
 lish a case of negligence against the defendants, it was incumbent on 
 the plaintiff to prove some fact which was more consistent with neg- 
 ligence than with the absence of it. There was nothing of the sort 
 proved here. There was nothing to show that the door and the steps 
 beyond were more than ordinarily dangerous ; and it was necessary and 
 proper that something of the sort should be there for the convenient 
 use of the station by the company. '' It would be difficult so to arrange 
 every part of a station as to render it impossible for careless persons 
 to meet with injury. I think the plaintiff failed to make out that he 
 sustained the injury complained of through any negligence of the 
 company or their servants. 
 
 Hule refused. 
 
 2. the same subject. 
 Cornman v. Eastern Counties Railway Company.* 
 
 English Court of Exchequer, 1859. 
 
 The Right Hon. Sir Frederick Pollock, Kt., Chief Baron. 
 Sir Samuel Martin, Kt., 
 
 " George William Wilshere Bramwell, Kt., 
 
 " William Henry Watson, Kt., 
 
 " William Fry Channell, Kt., 
 
 Barons. 
 
 Injury to Passeng-er from Weighing-Machine on Platform. — The defendants, a rail- 
 way company, had on their platform, stauding against a pillar which passengers passed 
 ingoing to and coming from the train, a portable weighing-machine which was used 
 for weighing passengers' luggage, and the foot of which was elevated about six inches 
 above the level of the platform. It was unfenced, and had stood in the same position 
 without any accident having occurred to persons passing it, for about iive years. The 
 plaintiff, being at the station on Christmas Day inquiring for a parcel, was driven by 
 the crowd against the machine, caught his foot in it, and fell over it. It was held that 
 there was no evidence, of negligence to go to the jury on the part of the company, the 
 machine being in a situation in which it might have been seen, and the accident not 
 being shown to be one which could have been reasonably anticipated. 
 
 Declaration: That the defendants, at the time of the grievances, 
 were the owners of a railway on which they were used and accustomed 
 to carry passengers and parcels for hire, and were also possessed of j^ 
 
 • Reported, 4 Hurl. & N. 781.
 
 OBSTRUCTED RAILWAY PLATFORMS. 77 
 
 English Court of Exchequer. 
 
 railway station, and platform abutting on the railway, upon, along, and 
 over which all persons lawfully being at the said station were used and 
 accustomed and were authorized by the defendants to pass and repass ; 
 and whereas at the time of the committing of the grievances the 
 plaintiff was expecting and about to receive a parcel then carried by a 
 certain train by the .defendants at their request for reward, and to 
 receive which parcel the defendants had authorized the plaintiff to go 
 and pass and repass upon, along, and on the said platform, the same 
 then being the regular, usual, and accustomed way for him to go and 
 pass and repass for the purpose aforesaid, of which the defendants had 
 notice, nevertheless the defendants carelessly, negligently, and improp- 
 erly then suffered and permitted a weighing-machine to be and remain 
 upon the said platform, in an unreasonable and improper place and a 
 place that was highly dangerous to persons going, passing, and repass- 
 ing upon, along, and on the platform in case the same should be greatly 
 crowded with persons, and suffered the platform to be greatly crowded 
 without taking reasonable means of preventing accidents, by means 
 whereof the plaintiff, whilst he was upon the said platform with the 
 consent of the defendants, was on account of the defendants' careless 
 and negligent conduct and want of due precautions cast and thrown on 
 the weighing-machine, etc. 
 Plea, not guilty. 
 
 At the trial before Channell, B., at the London Sittings in Trinity 
 Term, the plaintiff proved that on the 25th of December, 1858, he 
 went to the luggage counter at the arrival platform of the defendants' 
 railway to get a parcel, and while he was standing there a train arrived ; 
 the passengers from the train, who were very numerous, pressed him 
 forward, and he was driven against a weighing-machine on the platform, 
 which he did not see ; his foot caught the corner of the machine ; he 
 fell and broke his knee-cap. The machine stood against a pillar ; he 
 would not have fallen had the machine not been there. It was proved 
 that when there were large ifumbers of passengers they passed on each 
 side of the weighing-machine. A witness stated that at the Great 
 Northern, North-Western, Great Western, South-Eastern, and South- 
 western Railway stations the weighing-machines are flush with the floor. 
 At the Great Western station they are enclosed by railings. The 
 weighing-machine, which was used for weighing passengers' luggage, 
 had been in the same situation for five years. It was a portable 
 machine, which is convenient for weighing passengers' goods. A model 
 was produced showing that the foot on which goods were placed for
 
 78 DUTY AS TO STATIONS AND APPROACHES. 
 
 Cornmau v. Eastern Counties Railway Company. 
 
 the purpose of being weighed was six or eight inches above the level 
 of the floor of the platform. 
 
 The learned judge told the jury that the weighing-machine was a 
 thing which any person on th6 platform might have an opportunity of 
 seeing, and therefore that the case did not resemble that of an accident 
 from falling into an unfenced hole ; that one company was not bound to 
 adopt all the arrangements of another ; and he asked them whether or 
 not they thought that the machine was so constructed and in such a 
 position as that, without any negligence of persons coming on the plat- 
 form, accidents might occur. The jury found a verdict for the plaintiff. 
 Leave was reserved to the defendants to move to enter a nonsuit if the 
 court should be of opinion that there was no evidence to go to the jury. 
 Ballantine, Serjt., having obtained a rule nisi accordingly, — 
 Parry, Serjt., and H. James now showed cause. — Upon the pleadings, 
 it must be taken that the plaintiff was lawfully on the platform with the 
 consent of the defendants. It was negligence in the compan)' to place 
 a weighing-machine in such a position that persons on the platform are 
 liable to sustain injury by being driven against it by the pressure of 
 great crowds, such as might naturally be expected to congregate in 
 such a place at certain times. The verdict of the ]\xx'y shows that the 
 plaintiff did not contribute to the accident by any negligence of his 
 own. [Bramwell, B. — In a case against the South-Easteru Railway 
 Company, tried before me, in which mj' brother Hill was counsel for 
 the company, two flaps on the platform had been imperfectly turned 
 back ; the plaintiff, passing along the platform, tripped, and fell in, 
 I suggested that there was no defence ; he was so entirely of that opin- 
 ion that he submitted to a verdict.] If a dangei-ous bridge fall in, it 
 would be no answer to an action for negligence against the person who 
 put it up that ninety-nine persons had previously passed over it, if it ga\ e 
 way with the hundredth. In Martin v. Great Northern Railioay Com- 
 jMny,^ the plaintiff, in running along the platform of the railway to get 
 into the train, fell over a switch-handle ; it*was held that there was evi- 
 dence of negligence on the part of the defendants. The plaintiff there 
 was on a part of the platform where he ought not to have gone. [Bram- 
 well, B. — That case will not help this plaintiff, because there was evi- 
 dence that there was not light enough to enable a person unacquainted 
 with the premises to move about in safety. Watson, B. — I have 
 always thought that decision wrong, but perhaps it may be supported 
 
 1 16 0. B. 179.
 
 OBSTRUCTED RAILWAY PLATFORMS. 7l» 
 
 English Court of Exchequer. 
 
 on that giound.] In Southcote v, Stanley,^ the distinction between : 
 visitor and a person invited as a custonaer into a shop, or a passenger 
 to a raihva}' station, was adverted to; but it was said that a person in 
 the house of another, either as a visitor or on business, has a right that 
 the owner of the house shall take reasonable care to protect him froni 
 injury ; for instance, that he shall not allow a trap-door to be opcMt 
 through which the visitor may fall. The public in general know that 
 the platform is above the rails ; therefore they would be on their guaid 
 against falling off the platform. The real question is whether the prop- 
 erty of the defendants was so arranged as to be likely to produce dan 
 ger to a person situated as the plaintiff was. [Bkamwell, B. — In a 
 case in which I was counsel, the plaintiff came to a shop to measure a 
 picture for a frame, and followed the defendant over a counter. He 
 dropped through a sky-light. There was a verdict for the plaintiff, and 
 a rule to enter a nonsuit was refused. The difficulty here is that the 
 company could not have reasonabl}' anticipated the sort of accident 
 which happened. The weighing-machine had been in the same situation 
 for years without causing any accident to an}' one.] That was a ques* 
 tion for the jury. They referred also to Barnes v. Ward,^ and Toomey 
 V. London^ Brighton, and South Coast Raihvay Company.^ 
 
 Ballantine, Seijt., and Holland appeared in support of the rule, but 
 were not called on. 
 
 Martin, B. —The rule must be absolute. We are all of the opinion 
 that there was no evidence of negUgence to go to the jury. The railway 
 company had a station which they had used for a long time. They had 
 placed on the platform a weighing-machine for the purpose of weighing 
 luggage carried by the trains. It was a large machine which any one 
 might see. The plaintiff, on Christmas Da}' of last year, went to the 
 place where it was, and fell over it. There is an averment in the decla- 
 ration that he was lawfully there ; but the accident happened either 
 from his being pressed upon by other people, or by his own misfortune. 
 There is no evidence of any negligence on the part of the company. 
 No doubt if there had been an open place on the platform through 
 which any one might have fallen without perceiving it, that would have 
 been negligence on the part of the company. Here, however, the plat- 
 'form was in the same condition in which it had been for five years. 
 The accident was one of those misfortunes which will occasionally 
 occur, and of which people must bear the consequences. If the acci- 
 dent had occurred in a timber-yard, or in any other place than in the 
 
 » 1 Hurl. & N. 247. a 9 0. B. 392. »ZC.B. (N. S.) 146, ante, p. 72.
 
 ^0 DUTY AS TO STATIOKS AND APPROACHES. 
 
 Cornman v. Eastern Couuties Railway Company. 
 
 station of a railway company, no one would have thought of bringing 
 an action. 
 
 Bhamwell, B. — I have felt considerable doubt whether the rule 
 should be made absolute, not from any want of inclination to take care 
 that railway companies should be fairly treated, but because I think 
 that all the ingredients to make out a case of negligence against the 
 company exist except that proof is wanting that the mischief which 
 happened was one which could have been foreseen. In such a case, it is 
 always a question whether the mischief could have been reasonably 
 foreseen. Nothing is so easy as to be wise after the event. But here 
 no witness stated that he would have known that the position of the 
 weighing-machine was likely to cause danger. I adopt the rule stated 
 by Williams, J., in Toomey v. London, Brighton, and South Coast 
 Railway Comjmny: " It is not enough to say that there was some evi- 
 dence ; a scintilla of evidence, or a mere surmise that there may have 
 been negligence on the part of the defendants, clearly would not justify 
 the judge in leaving the case to the jury ; there must be evidence on 
 which they might reasonably and properly conclude that there was neg- 
 ligence." Here the evidence was that the company might reasonablj' 
 have anticipated that no mischief could occur, since no mischief had 
 resulted from keeping the machine in the position in which it stood for 
 so long a period. 
 
 Watson, B. — It is necessary for a railway company to have a weigh- 
 ing-machine. In the present case, this machine was close up to the 
 side of the railwa}', quite out of the course of the transit of passengers 
 from the carriages to the outlet from the station. It may be that on 
 this particular occasion, in consequence of the great number of pas- 
 sengers, the plaintiff was driven against the machine ; if so, the cause 
 of the accident was the pressure of the crowd. If there was a pitfall in 
 the direct road, or close to the road, the cases cited might have applied. 
 
 Channell, B. — I agree that the rule must be made absolute. At 
 the conclusion of the plaintiff's case, my brother Bcdlantine objected 
 that there was no evidence ; I was of that opinion ; but as it is often a 
 most difficult question whether there is not a scintilla of evidence 
 which ought to go to the jury, I refused to withdraw it from their con- 
 sideration. Some of the cases put in the argument have no bearing on 
 the question. If the accident had happened from the platform being so 
 constructed as to be insufficient to carry the weight of the persons who 
 might come in great numbei-s on a particular day, that, no doubt, would 
 have been evidence of negligence on the part of the company. 
 
 Mule absolute.
 
 Justices. 
 
 DEFECTIVE RAILWAY BRIDGE. 81 
 
 English Court of Common Pleas. 
 
 3. THE SAME SUBJECT. 
 
 LoNGMORE V. Great Western Kailway Company.* 
 
 English Court of Common Pleas, 1865. 
 
 The Right Hon. Sir William Erle, Kt., Lord Chief Justice. 
 Sir Edward Vaughan Williams, Kt., 
 
 " James Shaw Willes, Kt., 
 
 " John Barnard Byles, Kt., 
 
 " Henry Singer Keating, Kt., 
 
 *' Montague Edward Smith, Kt., 
 
 Death of Passenger from Defective Bridgre at Railway Station. — A railway com- 
 pany, (or the more convenient access of passengers between tlie two platforms of a 
 station, erected across the line a wooden bridge, which the jury found to be dangerous. 
 It was held that the company were liable for the death of a passenger through the 
 faulty construction of this bridge, although there was a safer one about one hundred 
 yards further around, which the deceased might have used. 
 
 This was an action brought by the plaintiff as administratrix of 
 her deceased husband, against the Great Western Railway Com- 
 pany, to recover compensation for his loss, which was alleged to have 
 occurred through the improper construction of a bridge belonging to 
 the defendants. 
 
 The cause was tried before Keating, J., at the last Spring Assizes at 
 Stafford. The facts proved were as follows : The deceased, who was 
 about sixty years of age, whilst on his way to the booking-office at a 
 small station on the defendants' railway between Birmingham and 
 Wolverhampton, in crossing a wooden bridge erected by the company 
 for the convenience of passengers wishing to go from one side to the 
 other, fell through what was described in the declaration as a ''danger- 
 ous aperture " on to the platform below, and was killed. At the place 
 through which the deceased fell there was a descent of eight or ten 
 steps, between which and the hand-rail at the side was an opening of 
 seven feet three inches by four feet two inches without any protection. 
 Two witnesses called on the part of the plaintiff stated that in their 
 opinion the bridge was extremely dangerous. 
 
 For the defendants, it was proved that the bridge in question had 
 been erected about ten years ; that it was a clear moonlight night when 
 the accident happened ; that the steps were in perfect repair, and that, 
 tliough manj thousand persons had passed over the bridge (and the 
 
 ♦ Koported, 19 C. B. (N. s.) 183. 
 6
 
 82 DUTY AS TO STATIONS AND APPROACHES. 
 
 Longmore v. Great Western Railway Company. 
 
 deceased himself many times), no casualty had ever before happened 
 there. It was also proved that there was another bridge over which the 
 deceased might have gone if so minded, but which was about one hun- 
 dred yards further around. And it was submitted that there was no evi- 
 dence to go to the jury of negligence on the part of the company ; that 
 the company were not bound to provide a bridge more than ordinarily 
 safe ; and that if the public chose to avail themselves of the shortei' 
 cut, they must take the bridge as they find it. 
 
 The learned judg6 left it to the jury to say whether or not the com- 
 pany had been guilty of negligence in providing a bridge for the use of 
 the public that was not reasonably safe. 
 
 The jury returned a verdict for the plaintiff; damages, £500, 
 
 Cooke, Q, C, pursuant to leave reserved to him, in Easter Term last 
 obtained a rule nisi to enter a nonsuit, on the ground that there was no 
 evidence of negligence to go to the jury; or for a new trial, on the 
 ground that the learned judge ought to have directed the jury that the 
 defendants were not liable, there being another bridge crossing the 
 railway, and that the deceased used the wooden bridge at his own risk. 
 He referred to Bolch v. Smith. ^ 
 
 Hudcllest07i, Q. C, and Macnamara, now showed cause. — There was 
 abundant evidence of negligence to go to the jury, and (if it were neces- 
 sary so to contend) to warrant the verdict. The deceased was going to 
 the booking-office by a mode of access provided for the public by the 
 defendants. It was their duty to see that it was safe. Two witnesses 
 proved that it was dangerous; and the result justified their opinion. 
 [WiLLES, J. — The Privy Council in one case held tliat the occurrence 
 of an accident was 2)rimd facie evidence of negligence ; "^ but that is 
 inconsistent with some other authorities.] There was no pretence for 
 saying that the deceased by his own carelessness contributed to the 
 accident ; nor did the fact of there being another and a safer bridge a 
 hundred yards off absolve the company from the duty of making the 
 bridge in question safe. It may be that if a way be dedicated to the 
 public with a dangerous structure on it, the public must take it with the 
 danger.3 But if a railway company for their own convenience choose 
 to construct a bridge to connect the two platforms of a station, and 
 invite the public to use it, they are responsible if it turns out to be 
 unsafe. It is to be remembered that this bridge is to be used, not 
 by the active and robust only, but also by children and by the old and 
 infirm. In the case referred to at the trial, ^ there was no dut3\ 
 
 » 7 Hurl. & N. 736. s See Robbins v. Jones, 16 C. B. (N, 8) 
 
 - Great Western R. Co. v. Braid, and the 221. 
 same v. Fawcett, 1 Moo. P. 0. (N. 8.) 101. •" Bolch v. Smith, sttpra.
 
 DEFECTIVE RAILWAY BRIDGE. 83 
 
 English Court of Common Pleas. 
 
 Cooke, Q. C, and H. James, in support of the rule. — To render the 
 company liable, thex-e must be some evidence of negligence on the part 
 of their servants, — some failure to perform a legal duty. They are 
 not responsible for an extraordinary and unforeseen accident at a spot 
 which has been safely traversed for years by thousands. If the com- 
 pany ought to have known that the want of an additional rail made this 
 bridge peculiarly dangerous, so ought the deceased, who was proved to 
 have passed over it many times. The case is in this respect very like 
 that of Toomey v. London, Brighton, and South Coast Railway Com- 
 pany.^ On the platform of a railway station there were two doors 
 in close proximity to each other ; the one, for necessary purposes, had 
 painted over it the words "For gentlemen," the other had over it the 
 words "Lamp-room." The plaintiff, having occasion to go to the 
 urinal, inquired of a stranger where he should find it, and, having 
 received a direction, by mistake opened the door of the " lamp-room," 
 and fell down some steps and was injured. In an action against the 
 railway' company, it was held that, in the absence of evidence that the 
 place was more than ordinarily dangerous, the judge was justified in 
 nonsuiting the plaintiff, on the ground that there was no evidence of 
 negligence on the part of the company. In using a way like this, some 
 caution is necessary on the part of the public. In Bolch v. Smith,^ the 
 workmen in a government dock-yard were permitted to use certain 
 water-closets erected for their accommodation, and for that purpose to 
 use certain paths across the dock-yard. The defendant, a government 
 contractor, was permitted to erect in the dock-yard certain machinery 
 for the purpose of his work. He erected across a path which led to 
 one of the water-closets a revolving shaft, partly covered with planks. 
 The plaintiff, a workman in the dock-yard, having gone along this path 
 to the watei'-closet, on his return stumbled, and, on putting out his 
 hand to save himself, his arm was caught by the shaft and lacerated. 
 There was another path along which he might have gone, but the one he 
 used was the more convenient. It was held that the defendant was not 
 liable for the injury, since he was under no obligation to fence the shaft, 
 and the defect in the fencing was apparent. In Cornman v. Eastern 
 Counties Railway Company,"^ the defendant, a railway company, had on 
 their platform, standing against a pillar which passengers passed in going 
 to and coming from the trains, a portable weighing-machine, which was 
 used for weighing passengers' luggage, and the foot of which projected 
 about six inches above the level of the platform. It was unfenced, and 
 
 1 3 C. B (N. 8.) 146, ante, p. TO. » 7 Hurl. & N. 736. « i Hurl. & N. 781, ante, p. 76.
 
 b4 DUTY AS TO STATIONS AND APPROACHES. 
 
 Lougmore v. Great Westeru Railway Company. 
 
 had stood in the same position, without any accident having occurred 
 to persons passing it, for about five years. The plaintiff, being at the 
 station on Christmas Day inquiring for a parcel, was driven by the 
 crowd against the machine, caught his foot in it, and fell over it. It 
 was held that there was no evidence of negligence on the part of the 
 company to go to the jury, the machine being in a situation in which it 
 might have been seen, and the accident not being shown to be one 
 which could have been reasonably anticipated. Bramwell, B., in 
 delivering judgment, says: "In such a case, it is always a question 
 whether the mischief could have been reasonably foreseen. Nothing 
 is so easy as to be wise after the event. But here no witness stated 
 that he would have known that the position of the weighing-machine 
 was likely to cause danger. I adopt the rule stated by Williams, J., 
 in Toomey v. London, Brighton, and South Coast Railway Company : 
 ' It is not enough to say that there was some evidence. A scintilla of 
 evidence, or a mex'e surmise that there may have been negligence on the 
 part of the defendants, clearly would not justify the judge in leaving the 
 case to the jury ; there must be evidence on which they might reasonably 
 and properly conclude that there was negligence.' Here, the evidence 
 was that the company might reasonably have anticipated that no mischief 
 could occur, since no mischief had resulted from keeping the machine 
 in the position in which it stood for so long a period." Here, the bridge 
 had been erected ten years, and no accident liad happened there. In 
 Marfellx. South Wales Railway Company,^ Erle, C. J., says: "The 
 undefined latitude of meaning in which the word ' negligence ' has been 
 used appears to me to have introduced the evil of uncertain law to a 
 pernicious extent ; and I think it essential to ascertain that there was a 
 legal duty, and a breach thereof, before a party is made liable by reason 
 of negligence." The evidence here showed that the accident was one 
 of an extraordinary and . unforeseen nature. 
 
 Erle, C. J. — I think this rule should be discharged. The question 
 seems to me to have been one peculiarly for the jury, viz., whether the 
 defendants exercised reasonable care and skill in the construction of 
 this bridge which passengers going by their railway were invited to use. 
 The evidence given on the part of the plaintiff was that it was not 
 constructed with reasonable skill; and I think the judge clearly would 
 not have been justified in taking upon himself, as a matter of law, to 
 determine as to the propriety of its construction, and withdraw that 
 question from the jury. There being, then, evidence for the jury, and 
 
 1 8 O. B. (N. 8.) 525, 534.
 
 OBSTRUCTED EUKESts i'liUM RAILWAY TliAlN 85 
 
 English Court of Exchequer. 
 
 it being within their province to decide upon it, and they having done 
 so, and having also found the deceased himself did nothing to con- 
 tribute to the accident, I think we ought not to disturb their verdict. 
 
 WiLLES, J. — I am of the same opinion. 
 
 Btles, J. — I also am of opinion that this rule should be discharged. 
 I was struck at first by the observation of Mr. James; but the fact is, that 
 the defect itself, as we now see, is not obvious to any one who looks at 
 the bridge ; and further than that, the danger from the defect, even if the 
 defect were obvious, would not be apparent ; and that being so, and the 
 bridge being a nearer mode of access to the railway from the house from 
 which the deceased came, he was invited by the company to pass over the 
 bridge, which had a defect in it which was not obvious, and the danger 
 from which was not apparent. In addition to that, it is to be recol- 
 lected that the jury have negatived all carelessness on the part of the 
 deceased. The simple question is, Was this an improper structure? 
 The plaintiff's witnesses stated that it was ; and they stood uncontra- 
 dicted, and their judgment is sustained by the event. It was purely a 
 question for the jury. 
 
 Keating, J. — I am of the same opinion. No doubt the jury might, 
 if so minded, have found that there was no negligence on the pait 
 of the company. And it certainly seemed to me that there was a very 
 strong case for the company. If I had been upon the jury, I do not 
 say I should have found the same way, though I do not at all mean to 
 intimate an opinion that they should not have found as they did. 
 
 Rule discharged. 
 
 4. THE SAME SUBJECT. 
 
 Nicholson v. Lancashire and Yorkshire Eailway Company.* 
 
 In the English Court of Exchequer, 1865. 
 
 The Right Hon. Sir Frederick Pollock, Kt., Chief Baron. 
 Sir Samuel Martin, Kt., 
 
 " George William Wilsiiere Bramwell, Kt., 
 
 " William Fry Channell, Kt., 
 
 " GiLLERY PiGOTT, Kt., 
 
 Barons. 
 
 Egress from Railway Train obstructed. Injuring Passenger. — The plaintiff, a 
 passenger by the defendants' railway, was set down at a station after dark, on the 
 
 • Eeported, 3 Hurl. & Colt. 534.
 
 86 DUTY AS TO STATIONS AND APPKOACHES. 
 
 Nicholson v. Lancashire and Yorkshire Railway Company. 
 
 side of the line opposite to the station and place of egress. The train was detained 
 more than ten minutes at this place, and from its length blocked up the ordinary cross- 
 ing to the station, which is on the level. Tlie ticket- collector stood near the crossing 
 with a light, telling the passengers, as they delivered their tickets, to " pass on." 
 The plaintitf passed down the train to cross behind it, and from the want of light 
 stumbled over some hampers put out of the train, and was injured. The practice of 
 pn >engers had been to cross behind the train, when long, without interference from 
 the railway company. These facts were held to be evidence for the jury of negligence 
 on the part of the company. 
 
 The declaration stated that at the time of the committing of the 
 grievances hereinafter mentioned the defendants were carriers of pas- 
 sengers for hire from "Wakefield to Thornhill Lees, in carriages on a 
 railway, and used a certain station at Thornhill Lees aforesaid for the 
 use and accommodation of their said passengers there, and the said 
 station was then in possession and under the management of the defend- 
 ants for the purposes aforesaid. Yet the defendants negligently man- 
 aged the said station and carriages, and omitted to light the said station 
 in a proper and sufficient manner for the use and accommodation of 
 their said passengers there, and to provide proper and sufficient accom- 
 modation for their said passengers to depart safely from the said 
 carriages on their arrival at the said station ; and negligently left 
 hampers in the way of their said passengers departing from the said 
 carriages at the said station, whereby the plaintiff, having been received 
 and carried by the defendants as a passenger in the said carriages on 
 the said railway from Wakefield aforesaid to Thornhill Lees aforesaid, 
 and being in the act, on his arrival at the said last mentioned place, of 
 departing from the said carriages at the said station, fell over the said 
 hampers, and was thrown down, etc. 
 
 Plea, not guilty. Issue thereon. 
 
 At the trial before Bi.ackburn, J., at the West Riding of Yorkshire 
 Summer Assizes, 1864, the following facts appeared: Thornhill Lees is 
 a station on the defendants' line of railway, the buildings of the station 
 and the principal platform being on the north side of the line. On the 
 south side there is also a raised platform formed out of the embank- 
 ment ; but to enable a passenger set down there to quit the line, it is 
 necessary that he should cross to the north side. The west end of the 
 north platform is opposite the east end of the south platform, and 
 between these points the railway company provide a crossing on the 
 level. Trains arriving from Wakefield and other places east of Thorn- 
 hill Lees deposit their passengers at the south platform. The plaintiff 
 arrived at Thornhill Lees from Wakefield by one of the defendants' 
 trains, and was set down after dark on the south platform. The train 
 remained there for ten minutes or a quarter of an hour, the carriages at
 
 OBSTRUCTED EGRESS FROM RAILWAY TRAIN. 87 
 
 English Court of Common Pleas. 
 
 the back of the train meanwhile, owing to its length, blocking up the 
 crossing to the north platform, and extending some distance behind the 
 crossing. The ticket-collector stood to collect the tickets at the east 
 end of the south platform, with a light, telling the passengers, as they 
 gave up their tickets, to "pass on." The plaintiff gave up his ticket, 
 and passed down the train with the intention of crossing behind it, but 
 in the darkness stumbled over a hamper that had been put out of the 
 train, and sustained the injuries for which this action was brought. 
 Evidence was also given that it had been the constant practice of pas- 
 sengers, when the ordinary crossing was blocked by the length of their 
 train, to pass down and cross behind it, and that this practice had never 
 been interfered with on the part of the railway company. 
 
 Overend, in last Michaelmas Term, obtained a rule nisi to enter a 
 nonsuit, upon the ground that there was no evidence for the jury of 
 the defendants' negligence ; against which — 
 
 Manisty and Kemplay showed cause, contending that the facts above 
 detailed amounted to an invitation on the part of the railway company 
 to the plaintiff to go where he did for the purpose of crossing behind 
 the train, and that under these circumstances there was evidence that 
 the mischief was caused by the railroad company's negligence. 
 
 Overend and Mmile, in support of the rule, contended that the mere 
 circumstance that the railway company on previous occasions had not 
 prevented passengers from crossing behind the train was no evidence 
 that they had sanctioned that practice ; and inasmuch as a regular way 
 was provided by the railway company where the line might be crossed, 
 passengers who for their own convenience chose to substitute another 
 way must take the substituted way with all its incidents. They cited 
 Cornman v. Eastern Counties Bailway Company,'^ and Wilkinson v, 
 Fairrie^^ relying on the latter case as closely resembling the present case 
 in its facts. 
 
 Pollock, C. B., now said. — This was a case tried at Leeds, before 
 my brother Blackburn, when the jury found a verdict for the plaintiff, 
 the learned judge reserving to the defendants leave to move to enter a 
 nonsuit if the court should think there was no evidence of the defend- 
 ants' negligence, the defendants not to appeal without the leave of the 
 court. 
 
 The accident appears to have happened as follows : When the train 
 in which the plaintiff was a passenger arrived at Thornhill Lees, the 
 train, owing to its length, blocked up that part of the line where the 
 
 » 4 Hurl. & N. 781, ante, p. 76. 8 i Hurl. & Colt. 633.
 
 88 DUTY AS TO STATIONS AND APPROACHES. 
 
 Crafter v. Metropolitan Railway Company. 
 
 railway company provide a level crossing for passengers to cross the 
 principal platform and so reach the place of egress from the station. In 
 that position the train remained for ten minirtes or a quarter of an hour. 
 As this had happened before, passengers on being set down had 
 acquired the habit of walking along the line and crossing behind the 
 train. Evidence was given that on this occasion when the passengers 
 reached the crossing, which was blocked by the train, their tickets were 
 taken and they were told by the ticket-collector to "go on; " and cer- 
 tainly there was no way of going on except by going along the train and 
 going round behind it. The plaintiff went on, and, there being no 
 light, stumbled over a hamper which had been put out of the train, and 
 sustained considerable injury. Under these circumstances, we are all 
 of opinion that there was evidence of negligence for the jury. 
 
 I own it appears to me to be some evidence of negligence if for ten 
 minutes or a quarter of an hour after a train has arrived and set down 
 its passengers there is an obstacle to impede those passengers from 
 reaching the platform. And for mischief thence arising, and not attrib- 
 utable to the plaintiff's negligence, I think the defendants are respon- 
 sible. The court all think the facts of this case disclose evidence of 
 negligence ; consequently the rule to enter a nonsuit must be discharged. 
 
 Ilvle discharged. 
 
 5. THE SAME SUBJECT. 
 
 Ckatter V. Metropolitan Railway Company.* 
 English Court of Common Pleas, 1866. 
 
 The Right Hon.^Sir William Erle, Kt., Lord Chief Justice. 
 Sir James Shaw Willes, Kt., 
 
 " John B.yrnard Byles, Kt., 
 
 '* Henry Singer Keating, Kt., 
 
 " Montague Edward Smith, Kt., 
 
 Justices. 
 
 Passengrer injured upon Slippery Staircase at Railway Station. — The staircase 
 leading from a railway station to a highway (being otherwise unobjectionable) had at 
 the edge of each step a strip of brass, which originally had been roughened, but which 
 had from constant use become worn and slippery. The staircase was about six leet 
 wide, and had a wall on each side, but no hand-rail. The plaintiff (a passenger by the 
 railway, who was a frequent traveller by the line), in ascending the station, slipped 
 and fell upon the stairs, and was much hurt. In an action charging the company with 
 
 * Reported, L. R. 1 C. P. 300.
 
 DEFECTIVE RAILWAY STATION. 
 
 English Court of Common Pleas. 
 
 negligence in not providing a reasonably safe and convenient staircase, two witnesses 
 for the plaintiff stated that in their opinion the staircase was unsafe, one of them (a 
 builder) suggesting that brass nosings on the steps was improper, and that lead would 
 have been better, because less slippery, and that there should have been a hand-rail. 
 This was held to be no evidence of negligence to go to the jury. 
 
 This was an action against a railway company for alleged negligence. 
 
 The second count stated that the defendants were carriers of pas- 
 sengers for hire on their railway, and used a certain station for tlie 
 reception and accommodation of the passengers thereon ; that the 
 station was in their possession and under their management ; and that 
 they negligently managed the said station, and kept the staircases and 
 approaches thereto in a dangerous and slippery state, and did not 
 provide hand-rails or sufficient accommodation for safe access to the 
 carriages ; and that the plaintiff, having been received by them as a 
 passenger, fell and was thrown down the staircase and was injured, etc. 
 
 Plea, not guilty. 
 
 The cause was tried before Erle, C. J., at the sittings at Westminster 
 after last Michaelmas Term, when the following facts appeared in 
 evidence : On the 28th of July, 1864, the plaintiff, who was a passenger 
 by the defendants' railway from Farringdon Street to King's Cross, 
 ascending the stairs at the King's Cross station to get to the highway, 
 slipped and fell and was considerably injured. The cause of his slip- 
 ping was that a strip of brass which was placed at the edge of each 
 step had by constant traffic been worn smooth. Two witnesses who 
 were called on the part of the plaintiff, one of whom was a builder, 
 stated that in their opinion the staircase was a dangerous one, as well by 
 reason of the nosings of brass as from the absence of a hand-rail. No 
 witnesses were called on behalf of the defendants to contradict this ; 
 but it was proved that about forty-thi-ee thousand persons had passed 
 up the staircase in question during each month since the station had 
 been opened in 1863, and that no accident had ever happened there. 
 It wns also proved that the plaintiff was in the constant habit of travel- 
 ling by the line, getting out at the same station. 
 
 It was contended on the part of the defendants that there was no 
 evidence to go to the jury of any actionable negligence or the omission 
 of any legal duty on their part. 
 
 His lordship declined to nonsuit the plaintiff, but reserved leave to 
 
 the defendants to move ; and he left it to the jury to say whether or not 
 
 the staircase afforded reasonable accommodation to the public. 
 
 The jury returned a verdict for the plaintiff, damages £105. 
 
 Hawkins, Q. C, on a former day in this term, obtained a rule nisi to 
 
 enter a verdict for the defendants or a nonsuit, on the grounds, — firsty
 
 90 DUTY AS TO STATIONS AND APPROACHES. 
 
 Crafter v. Metropolitan Railway Company. 
 
 that there was no proof of any such negligence as alleged ; secondly, 
 that there was no evidence to justify the finding of the jury; or for a 
 new trial, on the ground that the verdict was against evidence. 
 
 Huddleston, Q. C, and H. James, showed cause. — The only question 
 is whether there was an}^ evidence of negligence which the learned judge 
 was warranted in leaving to the jury ; if there was, the matter is disposed 
 of by their finding that the company had not provided reasonably suffi- 
 cient accommodation for the public. Two witnesses were called on 
 behalf of the plaintiff, one of whom was a builder, and both stated that 
 they considered the staircase in question to be a dangerous one. The 
 defendants called no witnesses. Under these circumstances, it can 
 hardly be said that there was no evidence to go to the jury. The case 
 very closely resembles Longmore v. Great Western Railway Company,^ 
 where the jury found a bridge over the railway, which had been 
 erected ten years, and over which many thousand persons had passed 
 safely, to be a dangerous structure, upon the opinion of two witnesses. 
 The question was left to the jury there in almost identically the same 
 terms as here ; and the court held that it was peculiarly a matter for 
 the jury, and refused to disturb the verdict. 
 
 Hawkins, Q. C, and Horace Lloyd, in support of the rule. — There 
 clearly was no evidence of negligence to warrant the conclusion the 
 jury came to. The stairs in question were ascending stairs, six feet 
 wide, with a wall on each side. The traffic being very great, it was 
 necessarj' for the safety of the public that the stairs should be as 
 durable as possible. The front part of the surface therefore was pro- 
 tected with brass, which is not an unusual thing to find on much-used 
 staircases. The reason why the defendants called no witnesses to 
 prove the staircase safe was that they thought the fact of so many 
 persons having used it without accident was abundant evidence of the 
 absence of danger ; and the^' had no reason to expect that any one 
 would have the hardihood to swear that it was dangerous. The evi- 
 dence to charge the defendants in a case of this sort must, as is 
 observed by Williams, J., in Toomey v. London, Brighton, and South 
 Coast Raihvay Company,^ be "evidence upon which the jury might rea- 
 sonably and properly conclude that there was negligence." Cornman v. 
 Eastern Counties Railway Company^ is also a strong authoritj^ that a rail- 
 way companj' are not to be charged with negligence unless it is shown 
 that they have omitted to perform some duty. 
 
 1 19 C. B. (N. 8.) 183, ante, p. 81. ^ 4 Hurl. & N. 781; s. c. 29 L. J. (Exch.) 94, 
 
 « 3 O. B. (N. 8.) 146; a. c. 27 L. J. (C. P.) 39, ante, p 76. 
 tmte, p. 72.
 
 DEFECTIVE RAILWAY STATION. 91 
 
 English Court of Common Pleas. 
 
 Erle, C. J. — I am of opinion that this rule should be made absolute, 
 because I think there was no evidence to go to. the jury of any action 
 able negligence on the part of the defendants. There is a manifest 
 distinction between the present case and that of Longmore v. Great 
 Western Railway Company.^ With regard to the nature of the structure, 
 it was an ordinary staircase about six feet wide, with a wall on each 
 side, the steps being of ordinary dimensions. There was nothing 
 peculiarly dangerous in it, like the staircase in Longmore' s Case. It 
 was said that brass was an improper thing for the surface of the 
 stairs, and that lead would be better because less slippery; but, in 
 my judgment, that expression of opinion on the part of the wit- 
 nesses affords no ground for holding the defendants liable. As to the 
 absence of a hand-rail, I see nothing in the nature of the structure 
 to make it the defendants' duty to provide one, though possibly it 
 might be occasionally found convenient, — as, by a man with a wooden 
 leg, or a very infirm person. Besides, from the width of the stair- 
 case, several persons must necessarily be going up together, and all 
 could not avail themselves of the hand-rail, if there. Further, the 
 plaintiff was shown to have been in the habit of using this staircase for 
 about eighteen months, and many thousand persons have used it with- 
 out any accident having happened. The mere circumstance of the 
 want of a hand-rail and the use of brass instead of lead, does not afford 
 a ground of action. 
 
 WiLLES, J. — I am of the same opinion. It was incumbent on the 
 plaintiff to give reasonable evidence from which the jury would be war- 
 ranted in concluding that the company had not furnished sufficient 
 accommodation for access to and from the station. The real question 
 was whether the staircase was defective and dangerous by reason of the 
 nosings (as the}' were called) of brass and the absence of a hand-rail. 
 The only evidence as to the former was that of the witness (the builder) 
 who said that lead would have been a safer material for the purpose, 
 because less slippery. But we must take that evidence with the common 
 experience which every one has. We all know that brass is a material 
 which is commonly used for the nosing of stairs in public offices, steam- 
 boats on the river, and other places of much resort. It is to be observed 
 also that the plaintiff himself well knew the condition of the staircase 
 in question, having gone up it daily for about eighteen months. Taking 
 all the circumstances together, this seems to me to be nothing more 
 than an attempt to dictate to the company, and make them cease to use 
 
 » 19 C. B. (N. 8.) 183, ante, p. 81.
 
 92 DUTY AS TO STATIONS AXD Al'PROACHES. 
 
 Crafter v. Metropolitan Kailway Company. 
 
 a particular metal on their staircases which is commonly used for the 
 purpose and which nobody has hitherto complained of. I think there 
 was no evidence which could properly be left to the jury to show that 
 the company had been guilty of any negligence in the construction 
 or maintenance of the staircase. I also think the case is very distin- 
 guishable from that of Longmore v. Great Western Railway Company. 
 In that case the danger arose from the circumstance of a rail being 
 placed at the side of some steps on the bridge, which apparently 
 afforded protection to persons using the bridge, but which in reality 
 afforded no protection whatever in the event of an accidental slip in 
 ascending or descending; thus leaving a hole, which was a sort of 
 concealed trap. Here, however, there was nothing improper or unusual 
 in the construction of the staircase ; nothing to cause danger to a person 
 walking with ordinary circumspection. For these reasons, I think the 
 rule should be made absolute to enter a nonsuit. That part of the 
 rule which seeks for a new trial as for a verdict against evidence may 
 be reserved, in order to abide any ulterior proceeding. 
 
 Keating, J. — I have felt some difficulty in seeing how this case is 
 to be distinguished from Longmore v. Great Western Railway Com- 
 pany, and I confess that that difficulty is not quite removed. It is, 
 however, only a question of degree. My lord and my brother Willes 
 think there is a distinction, and I do not wish to dissent from their con- 
 clusion. 
 
 Montague Smith, J. — I agree with my lord and my brother Welles 
 that a nonsuit should be entered. The line must be drawn in these 
 cases between suggestions of possible precautions, and evidence of 
 actual negligence such as ought reasonably and properly to be left to a 
 jury. It is difficult in some cases to determine where the line is to be 
 drawn, but here I have no hesitation in saying that there was no evi- 
 dence of negligence which my lord could properly leave to the jury. 
 There was nothing unusual in the construction of the staircase. The 
 use of brass for protecting the edges of the stairs, and the absence of a 
 hand-rail, which alone were relied on by the plaintiff, are by no means 
 unusual in staircases of a similar description where the traffic is great. 
 They were obvious to every one using the stairs, and were well known to 
 ihe plaintiff himself. The plaintiff has no right to complain of the 
 absence of accommodation of an unusual kind. The mere fact of the 
 plaintiff having fallen and hurt himself is not sufficient to charge the 
 company with negligence. Longmore v. Great Western Railway Com- 
 pany is obviously distinguishable. There, there was an aperture left 
 at the side of the stairs of the bridge, which was undoubtedly dan-
 
 DEFECTIVE RAILWAY PLATFORM. 93 
 
 Supreme Court of Iowa. 
 
 gerous ; it being large enough to admit of a person accidentally slipping 
 on the stairs falling through ; and it was not an obvious danger. As 
 to the suggestion of the witness that brass nosings were improper, and 
 tliat lead would be more proper, that was a mere expression of opinion. 
 Every case of this kind must be decided upon its own particular facts 
 and its surrounding cii'cumstances ; and the court is in an especial man- 
 ner bound to see that the evidence submitted to the jury in order to 
 establish negligence is sufficient and proper to go to them. I am clearly 
 of opinion that there was no sufficient or proper evidence here, and that 
 the rule to enter a nonsuit should be made absolute. 
 
 Bule absolute. 
 
 6. the same subject. 
 
 McDonald v. Chicago and North -Western Railroad 
 
 Company.* 
 
 Supreme Court of Iowa, 1868. 
 
 Hon. John F. Dillon, Chief Justice. 
 " Chester C. Cole, "] 
 *« George G. Wright, V Judges. 
 " Joseph M. Beck, J 
 
 1. Railroad — Duty to provide Station Accommodatioiis. — There exists a common- 
 
 law duty on the part of railway companies to provide reasonable accommodations at 
 their stations for passengers who are invited and expected to travel on their roads. 
 
 2. Rules of Company as to entering Cars. — Railroad companies are held to a 
 
 strict accountability for the safety of passengers. To enable them to properly dis- 
 charge this duty, they have power to make reasonable rules and regulations respecting 
 the time, mode, and place of entering cars; and these, when known to the passenger, he 
 is bound to conform to, and he cannot violate them by pursuing another course and 
 hold the company liable for damages thus occasioned, though the jury may believe 
 that an ordinarily prudent man might have adopted the same course. 
 
 *. Injury from Defective Platform — Liability of Company as Common Carriers.— 
 
 In the present case, which was an action by a husband and wife against a rail- 
 way company, as common carriers, to recover damages for injuries to the wife, caused 
 by defective steps to a platform to which the train had backed, and which was 
 not the usual place for passengers to get on and off the cars, the jui-y should have 
 been instructed to ascertain from the evidence whether the company had designated 
 or set apart the platform in front of the depot as the place where it required all pas- 
 aengers to enter the cars ; if so, and this was known to the plaintiffs, and they, in 
 disregard of such requirement, in advance of time, and without any justification, 
 sought to enter the cars at another place, and in so doing met with the injury, then 
 the company would not be liable as common carriers. But if, on the other hand, there 
 
 • Reported, 26 Iowa, 124.
 
 94 DUTY AS TO STATIONS AND APPROACHES. 
 
 McDonald v. Chicago and North-Western Railroad Company. 
 
 was no such rule or regulation known to the plaintiffs, and they in good faith, and 
 using reasonable care, were seeking to find and enter the cars, the company would 
 be liable, as the plaintiffs would have a right to presume that the platform and its 
 approaches were in a safe condition. 
 
 4. Same Subject. — As a general rule, railroad companies are bound to keep in a safe 
 condition all portions of their platforms, and approaches thereto, to which the public 
 do or would naturally resort, and all portions of their station grounds reasonably near 
 to the platforms, where passengers, or those who have purchased tickets with a view to 
 take passage on their cars, would naturally or ordinarily be likely to go. 
 
 Appeal from Linn District Court. 
 
 Liability of railroad companies for safe condition of platform at 
 stations, etc. 
 
 This was an action to recover damages for an injury received by 
 Mrs. McDonald, at Cedar Rapids, on the evening of January 3, 1867. 
 
 The petition avers that the defendant is a common carrier of pas- 
 sengers ; that on the third day of January, 1867, at defendant's station 
 in Cedar Rapids, Mrs. McDonald (plaintiff) purchased a ticket entitling 
 her to be carried from Cedar Rapids, Iowa, to Fulton, Illinois, and that 
 "thereupon it became and was the duty of the defendant to use due 
 and proper care that the plaintiff should be safely placed in said train, 
 and so to construct and keep in good repair the platform around the 
 said depot, and the steps to the same, that plaintiff could safely go 
 from the platform to the cars; " yet the defendant neglected its duty 
 in this behalf, " so that the plaintiff, in going from the platform to the 
 cars, fell through a step connected therewith, which defendant had 
 negligently left in an unsafe condition, by reason of which fall she 
 broke her ankle-bone and was otherwise injured," etc. 
 
 Answer: 1. In denial. 2- That the injury was caused by the plain- 
 tiff's own negligence. 
 
 On the trial it appeare(f in evidence that the plaintiffs (husband and 
 wife) had been on a visit to Cedar Rapids, and being desirous of going 
 to their home in "Wisconsin, procured tickets of the defendant, at its 
 station in Cedar Rapids, and waited in the passenger-room at the station 
 until the arrival of the train on which they expected to take passage. 
 The train arrived at 6 : 20 p. m., and left at 6 : 45 p. m. When the train 
 arrived, the plaintiffs went to take their seats in the cars, and when about 
 to step upon the train heard the announcement of " twenty minutes for 
 supper." Mr. McDonald testified, that about the time this announce- 
 ment was made " the train started, and moved back beyond the plat- 
 form, and 1 told my wife we had better go back into the room till 
 such a time as the train should come forward. She said *■ no,' she would 
 rather sit down on the platform, or stand up there, as the room was so 
 full of tobacco-smoke that she could not stand it. It made her sick.
 
 DEFECTIVE RAILWAY PLATFOKM. i5 
 
 Supreme Court of Iowa. 
 
 I proposed to her that we should go back to the cars and get on, as it 
 was cold. We started, and walked on the platform toward the cars 
 until we came to the west end of the platform, and in going down the 
 steps, one of them being loose and out of place at one end, it gave 
 way and came up between my legs, and threw us both on the track, 
 head foremost, down under the train." Her right leg was bioken, the 
 left ankle sprained, and she was otherwise injured, and long confined 
 to her bed. Mrs. McDonald testified to the same facts. 
 
 The evidence showed that the accident happened when it was "dusk, 
 or getting dark." There was evidence tending to show care in descend- 
 ing the steps where the accident happened. 
 
 Mrs. McDonald was fifty-nine years old, and weighed about two hun- 
 dred pounds. There was evidence showing that the passenger-depot, 
 if not full, was crowded with foreign emigrants, who were smoking. 
 The plaintiff (Mr. McDonald) testified that "it was thick with tobacco- 
 smoke, so much so that it was difficult for one to breathe ; and my wife 
 took more offence at it than I did." Mrs. McDonald testified that '*it 
 was so smoky that it made me sick," and that this was the reason 
 why she did not go back into the room, but went west along the plat- 
 form to get aboard of the cars. The [)laintiffs' son testified "that the 
 depot was so full of people that his mother could not get a seat, and 
 that it was full of tobacco-smoke, which was very offensive to her." 
 
 This testimony as to the smoky condition of the room was allowed to 
 go to the jury against the defendant's objection. 
 
 The defendant produced evidence showing that the steps where 
 plaintiffs fell were about three hundred feet distant from the door 
 of the passenger depot ; and that the usual place for passengers to 
 get on and off the cars was in front of the passenger-depot, and the 
 platform between it and the freight-depot. Passengers to and from 
 the Dubuque and South-Western Railroad depot usually pass over these 
 steps. It was also shown by the defendant that it was customary when 
 the train arrived, as in this instance, from the west, to run back so as to 
 bring the baggage and express cars to a point opposite the freight-depot, 
 for the purpose of discharging and receiving baggage and express matter. 
 This movement, on the evening on which the accident in question hap- 
 pened, placed the passenger-coaches west of the west end of the platform, 
 so that the nearest passenger-car was about one car-length beyond the 
 steps at the west end of the platform. It was while the cars were thus 
 ^tanding that the plaintiffs, without waiting for them to be drawn up to 
 the platform in front of the passenger-depot, started for them, walking 
 the whole length of the platform, and in descending the steps the injury
 
 96 DUTY AS TO STATIONS AND APPROACHES. 
 
 McDonald v. Chicago and North-Western Railroad Company. 
 
 for which this action is brought happened. Defendant also produced 
 evidence to the effect "that there was plenty of room to get on and 
 off the trains from the platform ; and that there was no necessity for 
 any one to go down these steps to get on. Before leaving, trains 
 always draw up in front of the passenger-depot, and stop to take on 
 passengers. The accident happened fifteen or twenty minutes before 
 the leaving-time of the train. The steps are not intended or used for 
 passengers to get on the trains. 
 
 The defendant asked the court to give the following instructions, viz. : 
 
 " 1. If the jury believe from the evidence that the defendant, at the 
 time of the alleged injury at the station at Cedar Rapids, was provided 
 with a safe and suitable platform in front of and adjacent to the pas- 
 senger-rooms of said station, so that passengers could safely and con- 
 veniently pass from said room to the trains, and that passenger-trains 
 stopped at said platform for the purpose of receiving passengers, and 
 if said plaintiffs, in attempting to get upon said train by a different and 
 unusual way, and at a different and unusual place, met with said acci- 
 dent, then the plaintiffs are not entitled to recover in this action. 
 
 "2. That if the plaintiff Margaret McDonald attempted to enter 
 said train at a place not prepared or designed by the defendant for 
 receiving passengers on trains, there being no paramount necessity for 
 so doing, and in making such attempt she received the said injury, then 
 her own fault contributed to the same, and the plaintiffs cannot recover. 
 
 "3. The liability of the defendant as a common carrier did not 
 commence as to the plaintiffs until the train which the}- were to take 
 was drawn up to the usual place for receiving passengers, unless they 
 were directed by some authorized agent of defendant to go upon the 
 train at another and different place, or before the train reached the 
 usual place." 
 
 *»*«*♦•• 
 
 Each of these was refused, and the defendant excepted. 
 
 The court, after referring to the issues made by the pleadings, 
 charged the jury as follows: — 
 
 ***♦**«♦ 
 
 " 4. The principal question for you to determine is. By whose fault 
 or negligence did the accident occur ? If one of the steps was loose 
 and not nailed down, by reason of which the accident happened, it is 
 Buch a want of care as would render the defendant liable, unless you 
 find that the accident happened, or was contributed to, b3' the want of 
 ordinary care and prudence on the part of the plaintiff Margaret 
 McDonald.
 
 DEFECTIVE RAILWAY PLATFOKM. 97 
 
 Supreme Court of Iowa. 
 
 "5. £t is for you to determine from tlie evidence whether the plaintiff 
 Margaret McDonald used ordinary care and prudence in leaving the 
 depot and going to the cars by the way and at the time she did ; and by 
 ordinary care is meant such care and prudence as an ordinarily pru- 
 dent person would exercise under like circumstances. 
 
 "6. If 3'ou find that an ordinarily prudent person would not have 
 gone down the steps of the platform where the accident occurred, but 
 would have waited until the passenger-cars were opposite the passenger- 
 depot, then the defendant is not liable. And if you find that the plain" 
 tiffs went by a way which was not used or travelled over by passengers 
 to enter the cars, and that a person of ordinary prudence would not 
 have gone by that way, you may fairly infer that there was a want of 
 ordinary care on her part. Passengers must exercise ordinary care in 
 approaching and entering the cars. 
 
 "7. If, however, you find that the defendant backed its train up to 
 the place where it stood when the accident happened ; that persons 
 could conveniently and safely approach the train where it then stood 
 but for the defective step, and there was no rule or regulation of the 
 company prohibiting persons from approaching the cars by that way, 
 and that an ordinarily prudent person would have approached the train 
 by that way, the defendant is liable if the accident occurred by reason 
 of the defective step." 
 
 The defendant excepted to this charge. 
 
 The jury returned a verdict for the plaintiffs for $2,000. A motion 
 for a new trial was overruled, and judgment was entered against the 
 defendant; from which it prosecutes the present appeal. 
 
 E. S. Bailey, for the appellant ; E. Latham, for the appellees. 
 
 Dillon, C. J., delivered the opinion of the court. — Appellant's vari- 
 ous grounds for a reversal of the judgment we notice in the order in 
 which they are presented by counsel. [Unimportant points omitted, and 
 the omission indicated by asterisks.] * * * 
 
 2. There was no error in the action of the court in allowing witnesses 
 to testify as to the condition of the passenger-room with respect to 
 tobacco-smoke. The evidence was proper as part of the transaction 
 out of which the injury arose, and as sliowing why the plaintiffs did not 
 ri main in the passenger-room, or return to it. The effect of this cir- 
 cumstance upon the riglits of tlie parties was not stated to the jury. It 
 would not justify the plaintiffs in violating a known rule of the com- 
 puiy, if there was one, as to the particular place where passengers were 
 required to enter tlieir cars. 
 
 But I have no hesitation in saying ihat, without any statute enacting 
 
 7
 
 98 DUTY AS TO STATIONS AND APl'ROACHES. 
 
 McDonald v. Chicago and Nortb-Western Railroad Company. 
 
 it, there is a common-law duty on these companies to provide reason- 
 able accommodations at stations for the passengers who are invited and 
 expected to travel on their roads. ^ If the station-room is full, or if it 
 is intolerably offensive by reason of tobacco-smoke, so that a passenger 
 has good reason for not remaining there, while this will not justify him 
 in violating reasonable rules and regulations of the company, which are 
 known to him, respecting the place, mode, and time of entering the cars, 
 it will justify his endeavor to enter the cars at as early a period as pos- 
 sible, especially if it is dark and cold without, if in so doing he uses 
 proper care and violates no rule or regulation of the compan}' of which 
 he has actual knowledge, or which, as a reasonable man, he would be 
 bound to presume existed. He would not, of course, be justified by the 
 condition of the passenger-room in rashly endeavoring to board a 
 train in motion, or the like ; but if the train had arrived, was on the 
 tiack, the car doors open, and if, as is frequently if not generally the 
 case, passengers are allowed, or at least not forbidden, to enter the cars 
 before they are drawn up in front of the station, we think a passenger 
 may reasonably and properly make the attempt to reach and enter the 
 cars, if he is not aware of any rule or regulation to the contrary ; and 
 if he receives an injury in so doing (he using proper care), from the 
 unsafe and dangerous condition of the platform or the steps in a place 
 where passengers would naturally go, the company are liable therefor. 
 
 This subject, and some of the leading and recent decisions bearing 
 upon it, will be alluded to in considering the instructions of the court 
 to the jury. * * * 
 
 5. It is next insisted that the court erred in refusing to instruct as 
 prayed by the defendant, and also in the charge of its own to the jury. 
 The view taken by the court below will appear from the instructions 
 refused and given, which are set out in the statement of the case and 
 need not be here repeated. 
 
 B3' recurring to the court's charge in chief, it will be seen that it 
 made the defendant's liability turn upon the question whether the step 
 which caused the accident was loose. The jury were told in the charge 
 that, if one of the steps was loose and not nailed down, by reason of 
 which the accident happened, the defendant is liable unless the plain- 
 tiffs' own want of care contributed to the injury; and such want of 
 care does not exist if the jury find that an ordinarily prudent person 
 would have gone down the steps of the platform, and would not have 
 waited until the passenger-cars were opposite the passenger-depot. See 
 paragraphs 4, 5, 6, and 7 of the charge. 
 
 1 Caterham R. Co. v. London R. Co , 87 Eng. Com. Law, 410.
 
 DEFECTIVE RAILWAY PLATFORM. 99 
 
 Supreme Court of Iowa. 
 
 These instructions assume and necessarily imply that the plaintiffs 
 liad the right to enter the cars when and where they attempted it, if an 
 ordinarily prudent person would have pursued the course which the 
 plaintiffs did ; that is, if such persons would have gone down the steps, 
 and not have waited for the cars to be drawn up to the platform opposite 
 the passenger-depot. 
 
 The law on this subject is this: Railroad companies are held to a 
 strict rule of accountability for the safety of passengers. This is salu- 
 tary and right. To enable them properly to discharge this duty, they 
 have the power to make reasonable rules and regulations. They may 
 make such rules and regulations respecting the time, mode, and place 
 of entering cars. These, when known to the passenger, whether they 
 have ever been written or published, or are posted up or not, he is 
 bound to conform to ; and he cannot violate them and pursue another 
 course, and hold the company liable for damages thus occasioned, and 
 which would have been avoided by conforming to the rules and regula- 
 tions of the company, even though the jury may believe that an ordi- 
 narily prudent person would or might have adopted the same course. 
 
 A railroad company has a right to require all passengers about to 
 enter their cars to do so only when the cars are brought up to the 
 platform for that purpose. We cannot say that it is a rule of law that 
 the mere existence of* a platform in front of a depot is necessarily 
 notice to the passenger that the train will be drawn up at that place to 
 receive him, and that the company require that he shall wait and enter 
 the cars at that place, and is prohibited from entering them elsewhere. 
 In many places, passengers are required or allowed by the companies to 
 enter trains elsewhere than from the platform in front of the passenger 
 station or depot. In many places, also, railroad companies fail to dis- 
 charge a duty which they owe to the travelling public, by leaving them, 
 without any assistance, to find out as best they can where the train is 
 which they wish to take, how to reach and when and where to enter it. 
 Few persons travelling in strange places and on strange roads but have 
 experienced the embarrassment arising from the failure of the company 
 to have sign-boards, or officers or agents in attendance, to give infor- 
 mation of this character. 1 A company may require trains to be entered 
 at a particular place, — as, for instance, in front of the passenger-depot. 
 Often, however, there is no such requirement, and passengers are 
 allowed, or at least not forbidden, to enter elsewhere. 
 
 Applying these general principles to the case in hand, we are of 
 opinion that the instructions asked by the defendant were faulty in so 
 
 ' See observations of Maule, J., to the juiy in Martin v. Railway Co., 81 Eug. Com. Law, 
 186, 187; 8. C. 16 C. B. 179, 186.
 
 100 DUTY AS TO STATIONS AND APPROACHES. 
 
 McDonald v. Chicago and North-Western Railroad Company. 
 
 far as they assume, as a matter of law, that it is the duty of a passen- 
 ger, irrespective of any knowledge on his part of any rule or regulation, 
 to wait, before entering the cars, until the train is drawn up in front of 
 the passenger depot or platform. If he knew that it was to be thus 
 drawn up, and that passengers were expected and required to wait until 
 this should be done before entering the cars, he could not, with such 
 knowledge, be justified in seeking to enter the cars in an unusual place 
 and at an unusual time, and hold the company for damages thus occa- 
 sioned. Why? Because he is not in the line of his duty and in the 
 exercise of his lawful rights at the time. If the plaintiffs attempted to 
 enter the cars at a place which they knew, or from the nature of the 
 circumstances surrounding them ought to have known, was not pre- 
 pared or designed for receiN'ing passengers, and at which they knew, or 
 from the circumstances ought to have known, the company did not 
 allow passengers to enter, the company would not be liable as common 
 carriers upon their contract, — however it might be if they had not 
 been declared against in this capacity, — for an injury happening in the 
 prosecution of such an attempt. Why? The answer is, that, in making 
 such an attempt, the plaintiffs would not be in the line of their dut}', or 
 in the exercise of any right conferred upon them by their contract with 
 the company. 
 
 Applying the general principles before expressed to the charge of the 
 court, and it is obvious that the minds of the jury were not directed to 
 the proper grounds on which the defendant's liabilit}' or non-liability 
 would depend. The jury should have been directed to ascertain from 
 the evidence whether the railroad company had designated or set apart 
 the platform as the place where it required all passengers to enter the 
 cars. If so, and this was known to the plaintiffs, and they, in disre- 
 gard of such requirement, and in advance of time, and without justifica- 
 tion for so doing, sought to enter the cars at another place, and in 
 so doing the wife met with the injury for which she sues, the com- 
 pany is not liable in this action as common carriers ; and this is the 
 capacity in which it is sued. If, on the other hand, there was no rule 
 or regulation known to the plaintiffs requiring them to enter at the plat- 
 form, and they, in good faith, and using reasonable care, were seeking 
 to find and enter the cars, the defendant would be liable for an injury 
 caused b}- the defective platform, or steps leading to it ; since the plain- 
 tiffs — it being dark, or nearly so — would have a right to presume that 
 the platform and its approaches were in a safe condition. 
 
 We will not undertake to la}' down any rule applicable to the ever 
 varied circumstances of all cases which may arise. The gist of such 
 an action as the present, if no known rule or regulation of the coin-«
 
 DEFECTIVE RAILWAY STATION. 101 
 
 Supreme Court of Ohio. 
 
 pany, reasonable in its character, has been violated, is negligence ; and 
 what constitutes negligence so as to give an action, it is impossible to 
 define in a rule which shall comprehend all cases. 
 
 The recent adjudications in the cases below cited have been carefully 
 examined, and they warrant us in laying down the general principles 
 before expressed. Upon reason, that is, enlightened common sense, 
 applied to the relation which railway companies sustain to the public, and 
 applied to the nature of man and the mode in which the business of 
 carrying passengers is practically and usually transacted, and upon the 
 authority of decided cases, we are justified in laying down the following 
 general rule as to the duty of such companies, to wit: that they arc 
 bound to keep in a safe condition all portions of their platforms, and 
 approaches thereto, to which the public do or would naturally resort, 
 and all portions of their station-grounds reasonably near to the plat- 
 forms, where passengers, or those who have purchased tickets with a view 
 to take passage on their cars, would naturally or ordinarily be likely to go. ^ 
 
 For the error before mentioned in the instructions of the court, the 
 judgment is reversed, and the cause remanded for a new trial in accord- 
 ance with the rules and principles of law herein expressed. 
 
 7. the same subject. 
 
 Pittsburgh, Fort Wayne, and Chicago Eailway Company 
 
 V. Brigham.* 
 
 Supreme Court of Ohio, 1876. 
 
 Hon. John Welch, Chief Justice. 
 " William White, 
 *' George Rex, 
 
 " W. J. GiLMORE, 
 
 " George W. McIlvaine, 
 
 Judges. 
 
 Railway Station— House blown down by a Storm.— A railroad company is not 
 liable for injuries occasioned by its buildings or structures being blown down by 
 
 • Reported, 29 Ohio St. 374. 
 
 ' Burgess ». Railway Co. (unfenced hole in platform; Crafter r. Railway Co., 12 Jur. 
 in station-ground near depot building), 95 (N. S.) 272; s. c. L. R. 1 C. P. 300 (18GG) ; 
 Eng. Com. Law, 923 (1858) ; Martin v. Rail- Longmore v. Railway Co., 19 C. B. (n. s.) 
 way Co. (defective light in station grounds, 183; 8. c. 115 Eng. Com. Law, 183 (1805) ; Saw- 
 where passengers would naturally go), 81 yer v. Railway Co., 27 Vt. 377; Murch v. 
 Eng. Com. Law, 179 (1855) ; Cornman v. Kail- Railroad Co., 29 N. H. 9, 39, 40, remarks of 
 way Co., 4 Hurl. & N. 781 (1859) ; remarks of Bell, J. ; Frost v. Railroad Co., 10 Allen, 387 
 Martin, B., and Watson, B., as to open place (1805).
 
 102 DUTY AS TO STATIONS AND APPKOACHES. 
 
 Pittsburgh, Fort Wayne, and Chicago Railway Company v. Brigham. 
 
 storms, where it has used that care and skill in their structure and maintenance which 
 men of ordinary prudence and skill usually employ; and it is error in such cases to 
 charge the jury that the company is " bound to guard against all storms which can 
 reasonably be anticipated." 
 
 Error to the District Court of Stark Count}'. 
 
 On the 5th of December, 1870, a violent storm blew down part of the 
 roof of the Massillon station-house belonging to the Pittsburgh, Fort 
 AVayne, and Chicago Railway Company, and Brigham was seriously 
 injured by the falling materials. At the time of the occurrence the 
 Pennsj'lvania Railroad Company was operating the road and using the 
 building, as lessee under the first-named company. Under the statute 
 which makes the lessor company equally liable with the lessee for injuries 
 occasioned in using and operating the road, Brigham brought his 
 action against both companies, charging the lessor company with negli- 
 gence in not constructing and securing the roof of the building in a 
 proper and substantial manner, and the lessee company with negligence 
 in maintaining and using it in its insecure condition. The negligence 
 was denied by both companies, and the cause was tried to a jury, who 
 returned a verdict for the plaintiff. A motion for a new trial, on the 
 ground that the verdict was against the law and the evidence, was over- 
 ruled by the court, and judgment was entered upon the verdict. This 
 judgment was subsequently affirmed in the District Court, and the plain- 
 tiff in error now seeks to reverse the judgments of both courts. 
 
 A bill of exceptions embodying all the testimonj' forms part of the 
 record. From this it appears that the roof in question had stood 
 eighteen years at the time of its fall, and there was a conflict of testi- 
 mony as to whether it was constructed on a proper plan and properly 
 fastened for the purpose of resisting storms, — some eight or ten experts 
 testifying in the affirmative, and some four or five in the negative. 
 There was also a conflict of testimony as to the severity of the storm, 
 as compared with other storms which had previously occurred in the 
 locality. 
 
 At the close of the testimony the defendants requested the court to 
 instruct the jury that if the roof of the station-house, at the time of 
 the accident, was of sufficient construction and strength to withstand 
 the ordinary and common storms of the locality, the defendants were 
 not liable ; that the defendants were not bound to foresee and provide 
 against extraordinary storms ; and that they were not liable unless they 
 had failed to use that care which prudent men ordinarily employ in such 
 matters. 
 
 Tliese instructions the court refused to give as requested, and instead 
 thereof gave the following : — 
 
 " The defendants were guilty of negligence if they failed, in construct-
 
 DEFECTIVE RAILWAY STATIONS. 103 
 
 Supreme Court of Ohio. 
 
 ing or maintaining said station-house, to use that degree of care jvhich a 
 man of ordinary prudence is accustomed to employ, in constructing or 
 maintaining a building for his own use for the same or like purposes, to 
 guard against danger from storms of wind which might reasonably have 
 been anticipated. If they used that care, they were not negligent, and 
 cannot be held liable although they are corporations. 
 
 "And further, you must find that the storm which caused the injury 
 was not unprecedented in that locality, but was of such character that 
 it might reasonably have been expected to occur at that place. 
 
 " The defendants were bound to provide against storms which could 
 reasonabl}^ have been anticipated, though likely to occur but rarely. 
 
 " But defendants were not bound to provide against a storm of wind 
 80 extraordinary in power that no experience could have anticipated its 
 occurrence. And if the storm in question was of this character, the 
 plaintiff cannot recover." 
 
 This instruction of the court, it is now claimed, was erroneous. 
 There are also various other grounds of error alleged, but it is not 
 necessary to state them in this report. 
 
 J. T. Brooks^ for plaintiff in error ; W. A. Lynch, for defendant in 
 error. 
 
 Welch, C. J. — In the first paragraph of the court's instruction we 
 think the law of the case is correctly stated. If the defendants, in the 
 construction and maintenance of the building, used that degree of care 
 which men of ordinary prudence are accustomed to employ in like busi- 
 ness, they were not liable. Had the court stopped with the proposition, 
 there clearly would have been no error in the charge. But the court 
 went further, and told the jury that the defendants were bound to 
 provide against all storms which could reasonably have been antic- 
 ipated^ and by plain implication told them that the defendants were 
 bound to provide against all storms that were not '•'■ nnprecedented," 
 or that were of a kind that had ever happened within the range of 
 human '•'■ experience." Taken by itself, this latter part of the charge 
 is clearly erroneous and in conflict with the rule as first and, as we 
 think, correctly laid down by the court. The whole charge, taken 
 together, to say the least, was calculated to mislead the jury. Two 
 rules, apparently in conflict with each other, were laid down for their 
 guidance, and it is impossible to know which they followed. The 
 general custom of prudent persons in such cases, and not the absolute 
 requirements of the occasion, is the true standard by which the defend- 
 ants should be tried. Tliey were only bound to come up to the fair 
 average of careful and prudent men. There are other assignments of
 
 104 DUTY AS TO STATIONS AND APPROACHES. 
 
 Notes. 
 
 error made in the case, but we only deem it necessary to say of them 
 that we do not deem them maintainable. 
 
 Judgment reversed and cause remanded. 
 
 NOTES. 
 
 § 1. The Extent ol this Duty. — The duty of the carrier in this particular is 
 nowhere better expressed than in the comprehensive rule laid down by Dillon, 
 C. J., in McDonald v. Chicago and North- Western Bailroad Company,^ viz., that 
 carriers are bound to keep in a safe condition all portions of their platforms, and 
 approaches thereto, to which the public do or would naturally resort, and all por- 
 tions of their station-grounds, reasonably near to the platforms, where passengers, 
 or those who have purchased tickets with a view to take passage on their cars, 
 would naturally or ordinarily be likely to go.^ The carrier's liability in respect 
 of the condition of his premises is neither greater nor less than that of any per- 
 son to another who by invitation or inducement, express or implied, has come 
 upon his premises for the purpose of transacting business. A duty of protection 
 is owed to such persons by the carrier, but it is needless to remark that this does 
 not amount to a warranty of the safe condition of the premises ; ^ neither is the 
 carrier held bound to bestow upon their condition that extraordinary degree of 
 vigilance which the law, from motives of the soundest policy, imposes upon 
 him in regard to the carriage of his passengers. The passenger while in actual 
 progress upon his journey is exposed to countless hazards, gives himself wholly 
 in charge of the carrier ; and in view of the circumstances of the case, the law 
 requires of the carrier the exercise of the greatest possible vigilance for the 
 benefit of the passenger, and holds him responsible for the slightest negligence.* 
 But a rule properly ceases with the reason for it; therefore, as a passenger's 
 entrance to the carrier's station is characterized by none of the hazards incident 
 
 1 26 Iowa, 125, ante, p. 93. capacity he was engaged upon the roof. 
 
 2 This case was retried and a second ap- Blackburn, J., stated that the burden of prov- 
 peal taken, but the correctness of the former ing the man on the roof to be a servant of 
 opinion was not questioned. See 29 Iowa, the company was on the plaintiff, and that 
 170, 175. he was not to be presumed to be so ; and 
 
 3 Welfare v. London etc. R. Co., L. R. 4 Q. further, " in this case no duty is cast on the 
 B. 693; s. c. 38 L. J. (Q. B.) 2-11; 17 Week. railway company to insure that no plank 
 Rep. 1065; 20 L. T. (N. s.) 743. In this case shall fall. Their duty is to take reasonable 
 the plaintiff, who had come to the defend- care to keep their premises in such a state as 
 ants' railroad station for the purpose of tak- that those whom they invite to come there 
 ing passage on one of their trains, was shall not be unduly exposed to dangei-." 
 injured by the fall of a plank and a roll of -i Phila. etc. R. Co. v. Derby, 14 How. 486, 
 /.inc through the roof upon him as he stood ante, p. 31 ; Str. New World v. King, 16 How. 
 inspecting the comjjany's time-table. At iGd, post, p. 175; Indianapolis etc. R. Co. v. 
 the time of the accident the plaintiff saw Horst, 93 U. S. 291; Fuller v. Naugatuck 
 through the hole in the roof above him the R. Co., 21 Conn. 557. See the next chap- 
 legs of a man appear. No evidence was ter. 
 
 offered as to who the man was, or in what
 
 EXTENT OF THIS DUTY. 105 
 
 To whom it is owed. 
 
 to the journey itself, the rigor of the rule above announced is justly relaxed, in 
 that at such a time and place the carrier is bound to exercise only a reasonable 
 degree of care for the protection of his patrons.' 
 
 Thus, the fact that the edges of the steps of a staircase at a station were 
 tipped with brass, which had been worn smooth by use, and that the staircase had 
 a wall on each side without any hand-rail, was held no evidence of negligence, 
 although some metal might have been used for this purpose which would not 
 wear quite so smooth ; or, as Erle, C. J., said, a hand-rail " might be occasionally 
 found convenient, — as, by a man with a wooden leg, or a very infirm person." ^ 
 And so it was no evidence of negligence that a railroad company allowed a weigh- 
 ing-machine to stand upon its platform, quite out of the course of travel, for the 
 purpose of weighing baggage, over which the plaintiff was pressed and injured 
 by the crush of a large crowd upon a holiday.^ A railway company was held 
 not responsible for injury to an illiterate person who in the night-time, in 
 search of the water-closet, passed by the door having a light over it and the 
 words "For gentlemen," and, opening a door having over it the sign "Lamp- 
 room," but no light above it, fell down some steps which led downwards immedi- 
 ately from the threshold.* The carrier is not liable for injuries occasioned by 
 its buildings or structures being blown down by storms, wher^ it has used that 
 care and skill in their structure and maintenance which men of ordinary pru- 
 dence and skill usually employ.^ 
 
 In another case, the plaintiff was bitten by a stray dog at a railway station, 
 while waiting for a train. It was proved that early in the evening the dog 
 snapped at and tore the dress of another woman on the platform ; that an hour 
 and a half aftei'wards he attacked a cat in the signal-box, near the station, where 
 he was kicked out by the porter, who saw no more of him. Ten minutes later 
 the dog made his appearance on the platform, where he bit the plaintiff. It was 
 held that there was no evidence to warrant a jury in finding that the company had 
 been guilty of any negligence in keeping the station reasonably safe for passtmgers.* 
 
 § 2. To whom this Duty is owed. — Although it is sometimes said that the 
 depot-grounds and passenger-houses of a railroad company are quasi-puhlic, by 
 reason of the general use to which they are appropriated,' yet persons resorting 
 there for their own convenience, or for the transaction of business in no way con- 
 nected with the railroad company, are where they have no legal right to be, and 
 
 1 Welfare r. London etc. R. Co., L. R. 4 Q. P. 300, ante, p. 88. Compare Crocheren v. 
 B. 693; Pittsburgh etc. R. Co. v. Brigham, 29 North Shore etc. Ferry Co., 1 Thump. & U. 
 Ohio St. 374,nn<e, p. 101; Inrlianaetc. R. Co. ■». 446; Davis v. London etc. R. Co., 2 Fost. & 
 Hudelson, 13 Ind. 325; Chicago etc. R. Co. v. Fin. 688. 
 
 Wilson, 63 111. 167; Cornman v. Eastern » Cornman v. Eastern Counties R. Co., 4 
 
 Counties R. Co., 4 Hurl. & N. 781 ; s. c. Hurl. & N. 781, ante, p. 76. 
 
 29 L. J. (Exch.) 94, ante, p. 76; Crafter v. * Toomcy v. London etc. R. Co., 3 C. B. 
 
 Metropolitan R. Co., L. R. 1 C. P. 300; s. c. 1 (N. S.) 146, ante, p. 72. 
 
 Harr. & R. 164; 12 Jur. (N. S.) 272; 35 L. J. * Pittsburgh etc. R. Co. ?;. Brigham, 29 Ohio 
 
 (C. P.) 132; 14 Week. Rep. 344, ante, p. 88; St. 374, ante, p. 101. 
 
 Toomey v. London etc. R. Co., 3 C. B. (n. s.) « Smith v. Gt. East. R. Co., L. R. 2 C. P. 4. 
 
 146, ante, p. 72; Rigg v. Manchester etc. R. ' Illinois etc. R. Co. v. Hammer, 72 111. 347. 
 
 Co., 12 Jur. (N. 8.) 525 Contra, however, Illinois etc. R. Co. v. God- 
 
 2 Crafter v. Metropolitan R. Co., L. R. 1 C. frey, 71 111. 500.
 
 106 DUTY AS TO STATIONS AND APPROACHES. 
 
 Notes. 
 
 therefore entitled to hold the company responsible only for wanton or wilful 
 injury.! Thus, persons using the station by mere permission and sufferance, — 
 as, those taking refuge from a storm, — cannot hold the company responsible for 
 injuries received by the station-house being partially blown down, although ordi- 
 nary care was not used in its construction.'' Similarly, a crowd having gathered 
 at a railway station to witness a passing parade, the company was held not liable 
 for injury to one of this number by the breaking down of the platform, even 
 though the floor was not in a proper state of repair for its ordinary use.' 
 
 Persons, however, having duties to perform incidental to the departure and 
 arrival of passengers, and all persons having business with the company, such 
 as shippers and consignees of freight, are entitled to the use of the company's 
 premises, and are entitled to the same protection as passengers from injury while 
 thereon.* A hackman caiTying a passenger to a depot for transportation has been 
 held to be one of this class, and he therefore recovered damages for injuries 
 received by stepping into a cavity in the platform of the station, such defect 
 being occasioned solely by the want of ordinary care on the part of the company.* 
 So, a consignee of freight who chose to unload the same himself, and in so doing 
 stepped upon a piece of defective flagging, in consequence of which he was 
 injured, was held to have higher rights than those of a mere licensee.* One who 
 desires to take passage upon the cars must exercise his right to enter and remain 
 in the station-house in conformity with the reasonable regulations of the company 
 as to his conduct while there ; he cannot exercise it until a reasonable time next 
 prior to the departure of the train on which he intends to go. What is such a 
 reasonable time depends upon the circumstances of each particular case.^ He 
 must also get upon the train in a proper manner, or the company will not be 
 responsible for injuries received, even though he come in contact with an obstruc- 
 tion near the track in endeavoring to board the train while in motion.* 
 
 Where two railway companies had adjoining stations, which the passengers of 
 each used indifferently, one of these companies was held responsible for an 
 injury from the careless operation of a truck, laden with baggage, by a porter of 
 the company owning the premises, to a person who was neither a passenger of 
 theirs nor on the premises of the company on any business in which they were 
 interested, but the passenger of another company. But this was on the prin- 
 ciple of respondeat superior, as the act causing the injury was one of misfeasance 
 done by a servant of the defendants in the course of his employment.* 
 
 1 Illinois etc. R. Co. v. Godfrey, 71 111. 500; 6 Tobin v. Portland etc. R. Co., 69 Me. 
 
 Pittsburgh etc. R. Co. v. Bingham, 29 Ohio St. 183. 
 
 364; Gillis v. Penn. R. Co., 59 Pa. St. 129. « Holmes v. North-Eastern R. Co., supra. 
 
 - Pittsburgh etc. R. Co. v. Bingham, 29 See also Wright v. London etc. R. Co., L. R. 
 
 Ohio St. 364. 10 Q. B. 298; s. c. affirmed in Court of Ap- 
 
 3 Gillis V. Pennsylvania R. Co., 59 Pa. St. peal, 1 Q. B. Div. 252. 
 
 129. 7 Harris v. Stevens, 31 Vt. 79. 
 
 * Ibid.; Tobin v. Portland etc. R. Co., 95 8 Phillips v. Rensselaer etc. R. Co., 49 N. 
 
 Me. 183; Holmes «. North-Eastern R. Co., L. Y. 177; Chicago etc. R. Co. v. Scales (Sup. 
 
 R. 4 Exch. 254; s. c. 38 L. J. (Exch.) 161 ; 17 Ct. 111. 1879), 9 Cent. L. J. 167. 
 
 Week. Rep. 800; 20 L. T. (N. S.) 616 (affirmed » Tebbutt v. Bristol etc. R. Co., L. R. 6 Q. 
 
 in the Exchequer Chamber, L.R. 6 Exch. 123; B. 73; s c.iOL.J. (Q. B.) 78; 32 L. T. (N. 8.) 
 
 40 L. J. (Exch.) 121). 772.
 
 TO WHOM THIS DUTY IS OWED. 107 
 
 Illustrations of Neglect of it. 
 
 §3. Illustrations of Negligence in tliis Particular. — As before stated, at 
 whatever point a railway company is accustomed to receive and discharge 
 passengers, they are bound to have the place properly constructed and in a 
 condition adequate for this purpose. ^ Thus, if the waiting-room of a station is 
 full, or intolerably offensive by reason of tobacco-smoke, it will justify a pas- 
 senger in endeavoring to enter the cars at as early a period as possible ; and if in 
 so doing he receives an injury from the unsafe and dangerous condition of the 
 platform or steps, in a place where passengers would naturally go, the com- 
 pany are liable therefor if the passenger used proper care and violated no 
 rule or regulation of the company of which he had actual knowledge, or 
 which, as a reasonable man, he would be bound to presume to have existed.^ 
 The platform between tracks, designed for the reception and delivery of passen- 
 gers, should be of sufficient width, — such that persons assembling thereon for 
 the purpose of taking or leaving the trains may do so in safety. A platform which 
 leaves standing-room of only about two feet in the clear when trains stand upon 
 -each track a,longside, does not meet the requirements of its purpose.* What- 
 ever portion of the station is designed for the convenience of passengers, though 
 having no necessary connection with the taking and leaving of trains, the company 
 will be under the same duty to keep in proper condition of repair. Thus, having 
 provided a telegraph office at one of its stations, for the use of its patrons, the 
 company will be responsible to one of its passengers who is injured solely 
 because of the company's negligence in failing to keep in proper condition the 
 platform erected by them over which a passenger, in alighting from the cars, must 
 pass to reach the telegraph office.* A railroad company is not bound to fence its 
 premises about a station to prevent passengers from taking a " short cut " 
 across them at night for the purpose of reaching the train sooner than by the 
 customary way ; * but if the company hold out an inducement or invitation to 
 its patrons to do so, they will be liable for injuries received on account of the 
 defective condition of the premises so traversed.® The fact that no one, without 
 some previous knowledge, can be expected to provide against the contingency of 
 a street car, with the railway upon which it stands, coming upon him by a side 
 movement, imposes upon the company moving their cars from one track to 
 another, in this unusual manner, a degree of care in so doing proportionate to 
 the dangers arising therefrom.^ 
 
 • McDonald ». Chicago etc. R. Co., ante, p. cases: "They should omit no act, the omis- 
 
 ^; Lisoomb ». New Jersey etc. R. Co., 6 sion of which would endanger the limbs or 
 
 Lans. 75; Hulbert *■. New York etc. R. Co., lives of tliose who seek to ride upon their 
 
 40 N. Y. 145; Knight v. Portland etc. R. Co., trains." 
 
 56 Me. 2;J4 ; Martin v. Great Northern R. Co., - McDonald v. Chicago etc. R. Co., 26 Iowa, 
 
 16 C. B. 179. In Chicago etc. R. Co. v. Fill- 124, aide, p. 93. 
 
 more, 57 111. 265, tlie plaintiff, in attempting » Chicago etc. R. Co. v. Wilson, 63 HI. 
 
 10 get upon the defendants' train, fell 167. 
 
 through a bridge over a highway sixteen * Clussman v. Long Island etc. R. Co., 9 
 
 feet below. The bridge was under the Hun. 618. 
 
 ■control of the defendants, and in the imme- * Burgess r. Great Western R. Co., 6 C. B. 
 
 (liate vicinity of their track. The bi-idge (N. 8.) 923. 
 
 happened to be temporarily uncovered for « Longmore v. Great Western R. Co., 19 
 
 repairs. The defendants were held respon- O. B. (N. 8.) 18.5. 
 
 5ible for this injury. Said the court, speak- ' Gurdon v. Grand Street etc. R. Co., 40 
 
 ing of the duty of railway companies in such Barb. 51H.
 
 108 DITY AS TO STATIONS AND APPROACHES. 
 
 Notes. 
 
 It is the duty of the corporation to have its stations open and lighted, and its 
 servants present, for the accommodation of those who may wish to leave its 
 trains or depart by the same.' Therefore, to leave open a flight of stairs at the 
 end of the station-house, by which a person may descend into a pitfall when the 
 place is not lighted,^ or to put off an aged woman at her destination in the night- 
 time, at a station neither open nor lighted, and without any one in attendance to 
 give her necessary directions, whereby she was injured in wandering about the 
 depot, although not by reason of the defective construction of the premises,^ 
 will constitute negligence in this particular. 
 
 If, in the ordinary course of transportation, it is necessary for a passenger to- 
 leave the train and proceed a considerable distance over the company's premises 
 for the purpose of taking another train, he has the right to assume that the way 
 provided for the purpose may be used with safety even on a dark night.* In 
 Hulhert v. New York, etc. Bailroad Company,^ the plaintiff's intestate, having been 
 carried beyond his destination in the night-time, was instructed by the conductor 
 of the train to go on to a station at which a train would be met going in the 
 opposite direction, on which he might return. The train reached this station at 
 about two o'clock in the morning, and stopped at a water-house about two 
 hundred and fifty feet west of the station. The passenger immediately got 
 out, and without making any inquii'ies, walked between the tracks with the 
 intention of taking the westward-bound train which stood at a water-tank about 
 two hundred feet east of the station. There were no lights at the station-house 
 which he passed, and none upon the premises except upon the trains. While 
 passing alongside the train which he was about to enter, he fell into an excava- 
 tion close to the track, which had formerly been used as a cattle-guard, and was 
 seriously injured. It appeared that the station-house was not open for that 
 train, and that passengers occasionally got on board of it at the water-tank as 
 this passenger was endeavoring to do ; but there was a conflict of testimony as 
 to whether the train, after leaving the water-tank, always stopped at the station- 
 house for passengers. It was held that it was a question for the jury whether 
 the passenger was guilty of negligence in endeavoring to reach the train as he 
 did, without making inquiries as to whether either train would stop at the station ; 
 
 1 Beard v. Connecticut etc. K. Co., 48 Vt. at a point where there was no station, on 
 
 101; Patten v. Chicago etc. R. Co., 32 Wis. account of the wrecking of a freight-train, 
 
 524; Hulbert V. New York etc. R. Co., 40 N. which blockaded the track. Between the 
 
 Y. 145 ; Knight v. Portland etc. R. Co., 56 Me- two trains was a ditch about three feet deep, 
 
 234; Nicholson v. Lancashire etc. B. Co., 3 which had to be crossed, over which was 
 
 Hurl. & Colt. 534, ante, p. 85 ; Martin v. Great placed a plank for the use of passengers. 
 
 Northern R. Co., 16 C. B. 179; Osborn v. Afire had been built by the train-men, not 
 
 Union Ferry Co., 53 Barb. 629. very far from the crossing of the ditch, and 
 
 - Beard v. Connecticut etc. R. Co., 4S Vt. there were many lanterns in the hands 
 
 101. of different employees scattered about the 
 
 3 Patten v. Chicago etc. R. Co., 32 "Wis. 524. vicinity, but the attention of pas^^engers was 
 
 < Hulbert V. New York etc. R. Co., 40 N. not particularly directed to the ditch. The 
 
 Y. 145; Knight v. Portland etc. R. Co., 56 Me. plaintiff, a passenger, in endeavoring to go 
 
 234. Contra, Falkiner v. Great Southern etc. from one train to the other, fell into this 
 
 R. Co., Irish Rep. 5 C. L. 213. In Vicksburg ditch and broke his leg, for which injury tlie 
 
 etc. R. Co. V. Howe, 52 Miss. 202, it was neces- defendants were held res]ionsible, as arising 
 
 sary to transfer the passengers on a dark from their neglect of necessary precautions, 
 and rainy night from one train to another, '■> Supra.
 
 ILLUSTKATIONS. 
 
 109 
 
 Injuries to Passengers in leaving Train. 
 
 And furtlier, that under the circumstances the jurj' were authorized to find the 
 defendant guilty of negligence in leaving the ground in so dangerous a condi- 
 tion, there being evidence that passengers often got into this train v^hile standing 
 At the Tvater-tanli near the dangerous place.^ So, in Nicholson v. Lancashire, etc. 
 Bailway Company,'^ the plaintiff, a passenger by the defendant's railway, was 
 set do-vvn after dark on the side of the line opposite to the station and place of 
 egress. The train was detained more than ten minutes, and from its length 
 blocked up the ordinary crossing to the station, which was on the level. The 
 ticket-collector stood near the crossing with a light, telling the passengers, as 
 they delivered their tickets, to "pass on." The plaintiff passed down the train 
 to cross behind it, and, on account of the place being unlighted, fell over some 
 baggage which had been put off the train, and was injured. It was the practice 
 of passengers to cross behind the train when long, without interference from 
 the servants of the company. These facts disclosed evidence for the jurj' of 
 negligence on the part of the company.^ 
 
 1 See also Dillaye v. New York etc. R. Co., 
 -56 Barb. 30, .and the very similar case of 
 Martin v. Great Northern R. Co., 16 C. B. 179, 
 the facts of which were, that the plaintiff 
 presented himself at the station just as the 
 ti'ain was about to start. He desired to go 
 oil the " up line." The station was so con- 
 structed that passengers wishing to go to a 
 train on the "up line" must cross the 
 " down line," for which purpose there was at 
 the end of the platform of the " down line " 
 a crossing at right angles to the platform on 
 the other side. AVhen the plaintiff arrived 
 at the station he was told that he was in 
 time, but received no directions as to how 
 the train was to be reached. Being in a 
 hurry, he did not observe the crossing; but 
 seeing the red lights of the train at some 
 little distance uji the line, he ran straight on 
 from the end of the platform, and came in 
 cfintact with a switch -handle, which injured 
 him. There was contradictory evidence as 
 to the sufficiency of the light at the station. 
 It was, however, conceded that there was 
 no light at the switch, and no fence or railing 
 to prevent persons from walking down an 
 inclined plane at the end of the station and 
 onward to the point where the injury was 
 received. On these facts, the question of 
 plaintiff's negligence (the defence being 
 that the accident was due entirely to the 
 plaintiff's negligence) was held to be prop- 
 erly submitted to the jury, who found for the 
 plaintiff. 
 
 The rule that the company must provide 
 safe and convenient means of entrance to 
 and egress from their cars, obviously has 
 no application to the case of a passenger on 
 the caboose-car of a freight-train. Such 
 passengers must be held to assume the dis- 
 
 comforts and dangers incidental to this 
 mode of travel, in this particular, although 
 the company are responsible for negligence 
 of their servants in the transportation. Pas- 
 sengers on freight-trains ^re liable to be 
 taken up and put down at very considerable 
 distances from the stations and at various 
 points; therefore it would be unreasonable 
 to expect the company to keep its line for a 
 half a mile on each side of each station 
 upon its road in a condition as safe and con- 
 venient as stations ordinarily are, simply 
 that these occasional patrons might be ac- 
 commodated. Murch V. Concord etc. R. Co., 
 29 N. H. 9, 42. 
 
 2 3 Hurl. & Colt. 534, ante, p. 85. 
 
 8 In Knight v. Portland etc. R. Co., 56 Me. 
 234, the plaintiff's ticket entitled her to pas- 
 sage over the defendants' road to Portland, 
 and by steamboat from Portland to Belfast. 
 The defendants' depot was distant from the 
 steamboat -landing about forty i-ods. The 
 defendants owned the wharf, and had built 
 their track upon it down to the steamboat- 
 landing. Trains were formerly run upon it 
 for the accommodation of passengers, but 
 had been discontinued; biiggage-cars were, 
 however, still run as before. Passengers 
 were directed to use the wharf as a passage- 
 way to the steamboat, and they did so use it. 
 The piaintiflf in this case, though directed by 
 none of the officers of the railroad or steam- 
 boat, proceeded in company with other pas- 
 sengers from the depot to the place of em- 
 barkation, until within a few feet of the edge 
 of the wharf, when she fell into a hole and 
 sustained injury, for which the defendants 
 were held responsible. Said Appleton, C. J. : 
 "The train arrives in the evening. Passen- 
 gers from the cars to the boat pass rapidly
 
 110 DUTY AS TO STATIONS AND APPROACHES. 
 
 Notes. 
 
 It is culpable negligence on the part of a railroad company to allow snow and 
 ice to accumulate upon the platforms of their stations. They should be on the 
 alert during cold weather to see whether there is ice upon the platform, and to 
 remove it, or make it safe by sanding it or in some other manner.' 
 
 The obligation of keeping the station in a reasonably safe condition imposes 
 upon the servants of the company the necessity of discharging their duties in a 
 prudent manner, such that the security of the passenger shall not be jeopard- 
 ized. Thus, in Jeffersonville, etc. Bailroad Company v. Riley, '^ the company was 
 held responsible for the act of a brakeman in throwing a burning stick of wood 
 from the train, which struck a passenger on the head who was walking upon 
 the platform. In Caswell v. Boston, etc. Railroad Company,^ the plaintiff, while 
 standing in a proper place to await the arrival of a train, was placed in great 
 danger from the approach of a train in an unexpected direction, by reason of the 
 displacement of a switch through culpable negligence of servants of the com- 
 pany. She became alarmed, and in running away to escape the apprehended 
 peril, fell and was injured. A verdict against the company was sustained, 
 although the course which the plaintiff took in running off brought her into 
 greater peril from the approach of the train, and although the immediate cause 
 of her fall was tripping over the raU of the track on which she was running. 
 
 over the intervenijig distance. The wharf there,' or ' You must go across the railwax 
 
 should be lighted. The servants of the de- there.' Or, if they do not have a man, they 
 
 fendant corporation should be in readiness might have a board placed at the end of the 
 
 to point out the way. The wharf should be platform with ' To the train,' in large letters, 
 
 safe." See also the language of Maule, J., painted upon it, and a hand upon that board 
 
 in his charge to the jury in Martin v. Great pointing in the direction which people are t'- 
 
 Northern R. Co., 16 C. B. 179, 186: "If they take." 
 
 [the company] choose to allow people to ' Weston r. New York etc. R. Co., 10 Jone> 
 
 cross the line at the last moment, it seems & Sp. 156; Seymour v. Chicago etc. B. Co.. 
 
 to me they should have a person to point out 3 Biss. 43; Shepherd v. Midland B. Co., 2i) 
 
 to passengers who are in a hurry the right Week. Rep. 705. 
 course lor them to take, and to tell them, 2 39 jnd. 568. 
 
 ' Yen must turn here,' or ' You must torn ^ 98 Mass. 194.
 
 CHAPTEB Y. 
 
 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Leading Cases: 1. Ingalls v. Bi7Zs. — Liability of carrier for injury to passen- 
 ger from defects in liis veliicle — Contributory negligence 
 of passenirer. 
 
 2. Hmdhmd v. Midland Railway Company. — Liability of car- 
 rier for injury to passenger from defects in his vehicle. 
 
 8. Hegeman v. Western Eailroad Corporation. — The same 
 subject. 
 
 4. Steamboat New World v. King. — The same subject, in Its^ 
 application to free passengers. 
 
 6. Christie v. Griggs. — Presumption of negligence from the 
 happening of the accident. 
 
 6. Stokes V. Saltonstall. — The same subject — Contributory 
 
 negligence of the passenger. 
 
 7. Curtis V. Bochester and Syracuse Eailroad Company. — Th 
 
 same subject. 
 
 Notes: I. General Doctrines. 
 
 § 1. Grounds on which this liability rests. 
 
 2. Overruled cases holding carriers of passengers liable as 
 
 insurers. 
 
 3. Such carriers not warrantors of their vehicles and roads, 
 
 but liable only for negligence. 
 
 4. Bound to use extraordinary care. 
 
 (1.) General expressions of the doctrine. 
 (2.) Expressions in railway cases. 
 (3.) Expressions in stage-coach cases. 
 (4.) Expressions in steamboat cases. 
 
 5. Modified expressions of the rule iu American cases. 
 
 6. The modem English rule of reasonable care. 
 
 7. American expressions of this rule. 
 
 8. Limitations upon the rule of extraordinary care. 
 
 9. Presumption of negligence from the happening of the acci- 
 
 dent. 
 
 n. In Failing to Provide a safe Vehicle and Roadway. 
 $ 10. Duty to adopt latest improvements. 
 
 11. Accidents from latent defects in vehicles. 
 
 12. Defects in the carrier's roadway. 
 
 13. Negligence of manufacturer or contractor Imputed tO' 
 
 carrier. 
 
 14. This obligation of the carrier, how affected by statute. 
 
 (Ill)
 
 112 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Insalls V. Bills. 
 
 Notes: III. Railway Carriers. 
 
 § 15. Duties of railway companies in general. 
 
 16. Duty to afford a reasonable time for passengers to get on 
 
 and off trains. 
 
 17. Trains overshooting or falling short of the platform of 
 
 the station. 
 
 18. Invitation to alight, express or implied. 
 
 19. Injuries to passengers on the track. 
 
 20. Degree of care required in transportation of passengers on 
 
 freight- trains. 
 
 rv. Stage Proprietors. 
 
 § 21. Duties of stage proprietors — The law as laid down by Mr. 
 Justice Story. 
 
 22. Duty to furnish competent drivers. 
 
 23. Care and vigilance exacted of the driver. 
 
 24. Overloading the vehicle. 
 
 1. LIABILITY OF CARRIER FOR INJURY TO PASSENGER FROM DE- 
 FECTS IN HIS VEHICLE — CONTRIBUTORY NEGLIGENCE OF PAS- 
 SENGER. 
 
 Ingalls V. Bills.* 
 Supreme Judicial Co^irt of Massachusetts, 1845, 
 
 Hon. Lemuel Shaw, Chief Justice. 
 " Samuel S. Wilde, "] 
 " Charles A. Dewey, \ Judges. 
 " Samuel Hubbard, J 
 
 1. measure of Liability. — Proprietors of coaches who carry passengers for hire are 
 answerable to a passenger for an injury which happens by reason of any defect in a 
 coach, which might have been discovered by the most careful and thorough exami- 
 nation, but not for an injury which happens by reason of a hidden defect which could 
 not, upon such examination, have been discovered. 
 
 ■2. Illustration — Breaking of Axle through Secret Defect. — A passenger in a coach 
 received an injuiy solely by reason of the breaking of one of the iron axletrees, in 
 which there was a very small flaw entirely surrounded by sound iron one-fourth of 
 an inch thick, and which could not be discovered by the most careful examination 
 externally. Held, that the proprietors of the coach were not answerable for the injury 
 thus received. 
 
 3. Contributory Negligence of the Passenger. — If a passenger in a coach, by reason 
 of a peril arising from an accident for which the proprietors thereof are lial)le, is in 
 so dangerous a situation as to render his leaping from the coach an act of reasonable 
 precaution, and he leaps therefrom and thereby breaks a limb, the proprietors are 
 answerable to him in damages, though he miglit safely have retained his seat.. 
 
 * Reported, 9 Mete. 1.
 
 LATENT DEFECTS IN HIS VEHICLE. 113 
 
 Supreme Judicial Court of Massachusetts. 
 
 Assumpsit on an implied promise of the defendants, as coach pro 
 prietors and common carriers of passengers, to convey the plaintiff 
 safely from Boston to Cambridge. 
 
 At the trial in the Court of Common Pleas, before "Williams, C. J., 
 the plaintiff introduced evidence tending to prove that, on the 23d of 
 September, 1841, he and several other persons took outside seats, as 
 passengers, on the top of the defendants' coach, to be conveyed from 
 Boston to Cambridge ; that on the way, in Court Street in Boston, 
 while pi'oceeding at a moderate rate, and without coming in contact 
 ■with any thing or meeting any obstruction, the hind axle tree of the 
 coach broke, one of the hind wheels came off, and the coach settled 
 down on one side, without being overset ; that the plaintiff and some 
 other outside passengers, being alarmed, jumped from the top of the 
 coach upon the pavement, and that the plaintiff's left arm was thereby 
 badly injured. 
 
 The defendants introduced evidence tending to prove that they had 
 taken all possible care and incurred extraordinary expense in order 
 that the said coach should be of the best materials and workmanship ; 
 that at the time of the accident, the coach, so far as could be dis- 
 covei'ed 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 roadworth^' condition. But the evidence furthei- 
 tended to prove that there was an internal defect or flaw in the iron of 
 the axletree, at the place where it was broken as aforesaid, about three- 
 eighths of an inch in length and wide enough to insert the point of' a 
 fine needle or pin, which defect or flaw appeared to have arisen from 
 the forging of the iron, and which might have been the cause of the 
 said breaking ; that the said defect was entirely surrounded by sound 
 iron one-quarter of an inch thick ; and that the flaw or defect could 
 not possibl}" have been discovered by inspection and examination 
 externally. 
 
 Upon this evidence, the defendants moved the court to instruct the 
 jury that it was the dut}^ of the defendants to use all possible care in 
 providing a good coach, in keeping the same in due repair, and in due 
 examination into its condition, and if they took such care, and the acci- 
 dent happened without any fault or negligence on their part, but b} 
 reason of a defect which they could not discover, then the verdict 
 should be for them ; and that the plaintiff was not entitled to a verdict 
 unless the jury were of opinion tliat there was some degree of actual 
 fault or negligence on the part of the defendants. 
 
 8
 
 114 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Ingalls V. Bills. 
 
 The judge declined giving these instructions, but submitted the evi- 
 dence to the jury, with instructions that the defendants were bound b}- 
 law, and by an implied promise on their part, to provide a coach not 
 only apparently, but really, roadworthy ; that they were liable for any 
 injur}'^ that might arise to a passenger from a defect in the original con 
 struction of the coach, although the imperfeclioii was not visible and 
 could not be discovered upon inspection and examination ; and that if 
 the jury were satisfied, from the evidence, that the axletree broke in 
 consequence of the original flaw or defect in the interior thereof, and 
 the plaintiff was injured thereby, he was entitled to a verdict, although 
 that flaw was invisible and could not be discovered by inspection and 
 examination externally. 
 
 The defendants further insisted that if the plaintiff jumped from the 
 coach without necessity, and that necessity brought upon him by them, 
 they were not liable ; and that although a passenger might have jumped 
 off without imprudence, still, if the plaintiff might have remained in 
 his seat without imprudence, his jumping off was to be considered as 
 his own act, and was done at his own peril. 
 
 Upon this point the judge directed the jury to inquire whether the 
 plaintiff's jumping off was, under the existing circumstances, an act of 
 reasonable precaution ; and instructed them that if the plaintiff was 
 placed in such a perilous situation, in consequence of the defendants' 
 failure to fulfil their ol)ligation aforesaid, that as a prudent precaution, 
 for the purpose of self-preservation, he was induced to leap from the 
 coach, the owners were answerable for any injury he might have sus- 
 tained thereby, although it might now appear that he might without 
 injury have retained his seat. 
 
 The jury returned a verdict for the plaintiff, and the defendants 
 alleged exceptions. 
 
 The argument was had at the last March term. 
 
 Parsons, for the defendants. — Carriers of passengers are not liable 
 for accidents which no skill or care can prevent. They are not insurers, 
 and are only bound to transport passengers as safely as human fore- 
 sight and care will permit. The distinction between the liabiHties of 
 carriers of goods and carriers of passengers has long been established.^ 
 It is impossible to distinguish the case at bar from the case of Christie 
 
 » 2 Kent's Comm. (3d ed.) 598-601; Story 37; Dudley v. Smith, 1 Camp. 167; Hollister 
 
 on Bail. (3d ed.), §§ 498, 571a, 590, 592; Aston v. Nowlen, 19 Wend. 236; Crofts v. Water- 
 
 V. Heaven, 2 Esp. 533; McKinney v. Neil, 1 house, 3 Bing. 321; s. c. 11 J. B. Moo. 137; 
 
 McLean, 340; Camden etc. R. Co. v. Burke, Boyce ». Anderson, 2 Pet. 150; Stokes tr. Sal- 
 
 13 Wend. 611, G27 ; Jackson v. ToUett, 2 Stark. tonstaU, 13 Pet. 181 ; Ware v. Gay, 11 Pick. 106.
 
 LATENT DEFECTS IN HIS VEHICLE. 115 
 
 Supreme Judicial Court of Massachusetts. 
 
 V. Griggs,^ where Mansfield, C. J., said, "if the axletree was sound 
 as far as human eye could discover, the defendant was not liable." 
 
 L. Williams and Nutter, for the plaintiff. — Though there is a well- 
 settled distinction between the liabilities of common carriers of goods. 
 and passenger carriers, yet the latter are liable for the insufficiency of 
 iheir carriages. They warrant that their vehicles are fit for the use to 
 which they are appHed. This principle removes the apparent discrep- 
 ancy in the adjudged cases. ^ In Crofts v. Waterhouse,^ Best, C. J.. 
 says, the coachman (among other things) must be provided with " a 
 coach and harness of sufficient strength and properly made. If there 
 be the least failure in an}'^ one of these things, the dut\^ of the coach 
 proprietors is not fulfilled, and they are answerable for any injury cr 
 damage that happens." In Christie v. Gfriggs,^ Mansfield, C. J., said 
 it lay on the defendant " to show that the coach was as good a coach at. 
 could be made ; " and this is recognized as law in 11 Pick. 112. 
 
 The case of Sharp v. Grey^ is decisive for the present plaintiff. The 
 action in that case, as in the case at bar, was assumpsit on an undertak- 
 ing to convey' the plaintiff safely. Gaselee, J., said, "The burden 
 lay on the defendant to show there had been no defect in the construc- 
 tion of the coach. Whether there had been or not was a question of 
 fact, on which the jury have determined. In Christie v. Griggs, the 
 accident was occasioned by a kennel which crossed tho road, and not by 
 any defect in the vehicle." Bosanquet, J., said, "The defendant was 
 bound to provide a safe vehicle, and the accident happened from a 
 defect in the axletree. If so, when the coach started it wa=i not road- 
 worthy, and the defendant is liable for the conseq lente, upon he same 
 principle as a ship-owner who furnishes a vessel which is not seaworthy." 
 A ship-owner is answerable for the consequences of a latent defect in his 
 vessel.^ 
 
 The decision in Crofts v. Waterhoiise'' does not conflict vith the doc- 
 trine for which the plaintiff contends. That was an action for negligence, 
 and of course could not be maintained without proof of negligence. 
 
 Greenleaf, in reply. — The decision in Sharp v. Grey went no further 
 than former decisions. In that case, the defect in the axletree might 
 have been discovered on inspection, and it was left to the jur}^ to "coii- 
 sider whether there had been, on the part of the defendant, that degree 
 
 1 2 Camp. 80. * 9 Bing. 457 ; 2 Moo. & S. 620. 
 
 2 Israel v. Clark, 4 Esp. 259; Bremner ». « Putnam v. Wood, 3 Mass. 481; Lyon t>, 
 Williams, 1 Car. & P. 414; 2 Stephen's N. Mells, 5 East, 428; Abb. on Ship. (4th Am. 
 P. 98.3; Selw. N. P. (Uth e<l.) 420. ed.) 218. 
 
 3 3 Bing. 321. < 2 Camp. 80. ' 3 Bing. 319.
 
 116 LIABILITY OF THE CARRIER FOK NEGLIGENCE. 
 
 Ingalls V. Bills. 
 
 of vigilance which was required by his engagement to carry the plaintiff 
 safely." The jury found that there had not been such vigilance, and 
 the court refused to set aside the verdict. The defendant was held 
 liable for negligence, and not for unavoidable accident. In the case at 
 bar, the defect in the axletree could not have been discovered. And 
 Harris v. Costar i shows that a count upon an undertaking to carry a 
 passenger safely cannot be supported without proof of some actual 
 negligence of the defendant.^ 
 
 The silence of the books on the subject of an action by a passenger 
 against a ship-owner for injury caused by a latent defect in a vessel is 
 an answer to the plaintiff's argument drawn from a simile used by 
 BosANQUET, J., in Sharp v. Grey. 
 
 Hubbard, J. — The question presented in this case is one of much 
 importance to a community like ours, so many of whose citizens are 
 engaged in business which requires their transportation from place to 
 place in vehicles furnished by others ; and though speed seems to be the 
 most desirable element in modern travel, yet the law points more 
 specifically to the security of the traveller. 
 
 Under the charge of the learned judge who tried this case, we are 
 called upon to decide whether the proprietors of stage-coaches are 
 answerable for all injuries to passengers arising from accidents happen- 
 ing to their coaches, although proceeding from causes which the greatest 
 care in the examination and inspection of the coach could not guard 
 against or prevent ; or, in other words, whether a coach must be alike 
 free from secret defects which the owner cannot detect after the most 
 critical examination, as from those which might, on such an examina- 
 tion, be discovered. 
 
 The learned judge ruled that the defendants, as proprietors of a 
 coach, were bound by law, and by an implied promise on their part, to 
 provide a coach, not only apparently, but really, roadworthy ; and that 
 they were liable for any injury that might arise to a passenger from a 
 defect in the original construction of the coach, although the imperfec- 
 tion was not visible, and could not be discovered upon inspection and 
 examination. 
 
 The law respecting common carriers has ever been rigidly enforced, 
 nnd probably there has been as little relaxation of the doctrine as 
 maintained by the ancient authorities, respecting this species of contract, 
 as in any one branch of the common law. This arises from the great 
 confidence necessarily reposed in persons engaged in this employment. 
 
 1 1 Car. & p. 636. ' gee Bretherton v. Wood, 3 Brod. & B. 54.
 
 LATENT DEFECTS IN HIS VEHICLE. 117 
 
 Supreme Judicial Court of Massachusetts. 
 
 Goods are intrusted to their sole charge and oversight, and for which 
 they receive a suitable compensation ; and they have been and still are 
 held responsible for the safe delivery of the goods, with but two excep- 
 tions, viz., the act of God and of the king's enemies ; so that the owners 
 of goods may be protected against collusive robberies, against thefts 
 and embezzlements, and negligent transportation. But in regard to 
 the carriage of passengers, the same principles of law have not been 
 applied ; and for the olivious reason that a great distinction exists 
 lietween persons and goods, the passengers being capable of taking 
 care of themselves, and of exercising that vigilance and foresight in 
 the maintenance of their rights which the owners of goods cannot do, 
 who have intrusted them to others. 
 
 It is contended by the counsel for the plaintiff that the proprietor of 
 a stage-coach is held responsible for the safe carriage of passengers so 
 far that he is a warrantor that his coach is roadworthy, that is, is abso- 
 hitely sufficient for the performance of the journey undertaken ; and 
 that if an accident happens, the proof of the greatest care, caution, and 
 diligence in the selecting of the coach, and in the preservation of it 
 during its use, will not be a defence to the owner ; and it is insisted that 
 this position is supported by various authorities. The cases, among 
 many others cited, which are more especially relied upon are those of 
 Israel v. Clark^^ Crofls v. Waterhouse,^ Bremner v. WilUams^'^ and 
 Sharp V. Grey.^ If these cases do uphold the doctrine for which they 
 are cited, they are certainly so much in conflict with other decided 
 cases that they cannot be viewed in the light of established authorities. 
 But we think, upon an examination of them, and comparing them with 
 other cases, they will not be found so clearly to sustain the position of 
 the plaintiff as has been argued. 
 
 It must be borne in mind that the carrying of passengers for hire in 
 coaches is comparatively a modern practice, and that though suits 
 occur against owners of coaches for the loss of goods, as early as the 
 time of Lord Holt, yet the first case of a suit to recover damages by 
 a passenger, which I have noticed, is that of Wliite v. BouUon^^ which 
 was tried before Lord Kenton in 1791, and published in 1795. That 
 was an action against the proprietors of the Chester mail-coach for the 
 negligence of the driver, by reason of which the coach was overturned 
 and the plaintiff's arm broken, and in which he recovered damages for 
 
 1 4 Esp. 259. » 1 Car. & P. 414. 
 
 « 3 Bing. 319. « 9 Bing. 457. :■ Peak. 113.
 
 118 LIABILITY OF THK CARRIER FOR NEGLIGENCE. 
 
 Ingalls V. Bills. 
 
 theinjuiy; and Lord Kenyon, in delivering his opinion, said, " Wlien 
 these [mail] coaches carried passengers^ tlie proprietors of them weri- 
 bound to carry tliem safely and properly." The correctness of the 
 opinion cannot be doubted in its application to a case of negligence. 
 The meaning of the word "safely," as used in declarations I'oi' this 
 species of injury, is given hereafter. 
 
 The next case which occurred was that of Aston v. Heaven,^ in 1797, 
 which was against the defendants, as proprietors of the Salisbury stage- 
 coach, for negligence in the driving of their coach, in consequence of 
 which it was overset and the plaintiff injured. This action was tried 
 before Eyre, C. J. It was contended by the counsel for the plaintiff 
 that coach-owners were liable in all cases except where the injury 
 happens from the act of God or of the king's enemies ; but the learned 
 judge held that cases of loss of goods by carriers were totally unlike 
 the case before him. In those cases, the parties are protected by the 
 custom ; but as against carriers of persons, the action stands alone on 
 the ground of negligence. 
 
 The next case was that of Israel v. Clark^'^ in 1803, where the plaintiff 
 sought to recover damages for an injury arising from the overturning 
 of the defendants' coach in consequence of the axletree having broken ; 
 and one count alleged the injury to have arisen from the overloading of 
 the coach. It was contended that if the owners carried more pas- 
 sengers than they were allowed by act of Parliament, that should be 
 deemed such an overloading. To this Lord Ellenborodgh, who tried 
 the cause, assented, and said, "If they carried more than the statute 
 allowed, they were Uable to its penalties ; but they might not be entitled 
 to carry so many ; it depended on the strength of the carriage. They 
 were bound b}' law to provide sufficient carriages for the safe convey- 
 ance of the public who had occasion to travel by them. At all events, 
 he would expect a clear landworthiness in the carriage itself to be 
 established." This is one of the cases upon which the present plaintiff 
 specially relies. It was a nisi jjriiis case, and it does not appear upon 
 which count the jury found their verdict. But the point pending in 
 the present case was neither discussed nor started, viz., whether the 
 accident arose from the negligence of the owner in not' providing a 
 coach of sufficient strength, or from a secret defect not discoverable 
 upon the most careful examination. No opinion was expressed whether 
 the action rests upon negligence or upon an implied warranty. But it 
 
 1 2 Esp. 533. « 4 Esp. 259.
 
 LATENT DEFECTS IN HIS VEHICLE. 119 
 
 Supreme Judicial Court of Massachusetts. 
 
 was stated that the defendants were bound by law to provide sufficient 
 carriages for the passage, and at all events that there should be a clear 
 landworthiness in the carriage itself. 
 
 The general position is not denied with regard to the duly of an 
 owner to provide safe carriages. The duty, however, does not in itself 
 import a warranty. The judge himself may have u^ed stronger expres- 
 sions, in the terms "landworthiness in the carriage," than he intended 
 l)y the thought of seaworthiness in a ship, and the duty of ship-owners 
 in that respect. If the subject had been discussed, and the distinctions 
 now presented had been raised, and then the opinion had followed as 
 expressed in the report, it would be entitled to much more considera- 
 tion than the mere strength of the words now impart to it. 
 
 The next case was that of Christie v. Griggs,^ in 1809. There, the 
 axletree of the coach snapped asunder at a place where there was a 
 slight descent from the kennel crossing the road, and the plaintiff was 
 thrown from the top of the coach. Sir James Mansfield, in instructing 
 the jury, said: "As the driver had been cleared of negligence, the 
 question for the jury was as to the sufficiency of the coach. If the 
 axletree was sound, as far as human eye could discover, the defendant 
 was not liable. There was a difference between a contract to carry 
 goods and a contract to carry passengers. For the goods, the carrier 
 was answerable at all events, but he did not warrant the safety of i-ho 
 passengers. His undertaking as to them went no further than this, 
 that, as far as human care and foresight could go, he would provic'e for 
 their safe conveyance. Therefore, if the brenking down of the c acli 
 was purely accidental, the plaintiff had no remedy for the misfortune- he 
 had encountered." 
 
 The case of Bremner v. Williams,^ in 1824, is relied on by the plain- 
 tiff. There, Best. C. J., said he considered that " every coach proprietor 
 warrants to tlie public that his stage-coach is equal to the journey it 
 imdertakes, and that it is his duty to examine it previous to the com- 
 mencement of every journey." And so, in Cmfts v. WatcrJwuse,^ in 
 1825, Best, C. J., said, "The coachman must have competent skill, 
 and use that skill with diligence ; he must be well acquainted with the 
 road be 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 one of these 
 things, the duty of the coach proprietors is not fulfilled, and they are 
 answerable for any injury or damage that happens." But though this 
 
 1 2 Camp. 79. 2 1 Car. & P. 414. » 3 Bing. 32L
 
 120 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Ingalls V. Bills. 
 
 language is strong, and would apparently import a warranty, on the part 
 of the stage proprietor, as to the sufficiency of his coach, yet Park, J.» 
 in the same case, said, " a carrier of passengers is only liable for negli- 
 gence." This shows that the court did not mean to lay down the law 
 that a stage proprietor is in fact a warrantor of the sufficiency of his 
 coach and its equipments, but that he is bound to use the utmost dili- 
 gence and care in making suitable prevision for those whom he carries ; 
 and we think such a construction is warranted by the language of the 
 same learned judge (Best) in the case of Harris v. Costar,^ in 1825, 
 where the averment in the declaration was that the defendant under- 
 took to carry the plaintiff safely. The judge held that it did not 
 mean that the coach proprietor undertook to convey safely absolutely, 
 but that it was to be construed like all other instruments, taking the 
 whole together, and meant that the defendants were to use due care. 
 
 But the case mainly relied upon by the plaintiff is that of Sharp 
 v. Grey,^ where the axletree of a coach was broken and the plaintiff 
 injured. There, the axle was an iron bar enclosed in a frame of wood 
 of four pieces, secured by clamps of iron. The coach was examined, 
 and no defect was obvious to the sight. But after the accident a 
 defect was found in a portion of the iron bar, which could not be 
 discovered without taking off the wood- work; and it was proved 
 that it was not usual to examine the iron under the wood-work, as 
 it would rather tend to insecurity than safety. It does not appear, 
 by the statement, that the defect could not have been seen on taking off 
 the wood-work, but it would rather seem that it might have been dis- 
 covered. However that may be, the language of different judges, in 
 giving their opinions, is relied upon as maintaining the doctrines eon- 
 tended for by the plaintiff. Gaselee, J., held that " the burden lay on 
 the defendant to show there had been no defect in the construction of 
 the coach." Bosanquet, J., said "the Chief Justice [who tried the 
 case] held that the defendant was bound to provide a safe vehicle, and 
 the accident happened from a defect in the axletree. If so, when the 
 coach started it was not roadworthy, and the defendant is liable for the 
 consequences upon the same principle as a ship-owner who furnishes a 
 vessel which is not seaworthy." And Alderson, J., said he was of the 
 same opinion, and that "a coach proprietor 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. 
 The injury in the present case appears to have been occasioned by an 
 
 1 1 Car. & P. 636. « 9 Bing. 457.
 
 LATENT DEFECTS IN HIS VEHICLE. 121 
 
 Supreme Judicial Court of Massachusetts. 
 
 original defect of construction ; and if the defendant were not respon- 
 sible, a coach proprietor might buy ill-constructed or unsafe vehicles 
 and his passengers be without remedy." 
 
 This case goes far to support the plaintiff in the doctrine contended 
 for by his counsel, as it would seem to place the case upon the ground 
 that the coach proprietor must, at all events, provide a coach absolutely 
 and at all times sufficient for the journey, and that he is a warrantor 
 to the passenger to provide such a coach ; but we incline to believe 
 the learned judges gave too much weight to the comparison of 
 BosANQUET, J., — viz., that a coach must be roadworthy on the same 
 principle that a ship must be seaworthy. We think the comparison 
 is not correct, and that the analogy applies only where goods are 
 carried, and not where passengers are transported. And no case has 
 been cited where a passenger has sued a ship-owner for an injury 
 arising to him personally in not conducting him in a seaworthy ship. 
 If more was intended by the learned court than that a coach proprietor 
 is bound to use the greatest care and diligence in providing suitable 
 and sufficient coaches and keeping them in a safe and suitable condi- 
 tion for use, we cannot agree with them in opinion. To give their 
 language the meaning contended for in the argument of the case at 
 bar, is, in fact, to place coach proprietors in the same predicament with 
 common carriers, and to make them responsible, in all events, for the 
 safe conduct of passengers, so far as the vehicle is concerned. But that 
 the case of Sharp v Orey is susceptible of being placed on the ground 
 which we think tenable, namely, that negligence, and not warranty, 
 lies at the foundation of actions of this description, may be inferred 
 from the language of Mr. Justice Park, who, in giving his opinion, 
 says, " this was entirely a question of fact. It is clear that there was a 
 defect in the axletree ; and it was for the jury to say whether the acci- 
 dent was occasioned by what, in law, is called negligence in the defend- 
 ant, or not." And Tindal, C. J., who tried the cause before the jury, 
 left it for them to consider whether there had been that vigilance which 
 was required by the defendant's engagement to carry the plaintiff 
 safely ; thus apparently putting the case on the ground of negligence, 
 and not of warranty. ^ 
 
 The same question has arisen in this country, and the decisions 
 exhiV)it a uniformity of opinion that coach proprietors are not liable as 
 common carriers^ but are made responsible by reason of negligence. 
 In the case of Camden and Amhoy Railroad Company v. Burke,^ the 
 
 1 See also Bretherton v. Wood, 8 Brod. & B. 54; 6 J. B Moo. 141 ; An.eell v. Waterhouse, 6 
 Man. & Sol. 385; 2 Chit. 1. ' 13 Wend. 626.
 
 122 LIABILITY OF THE CARRIER FOR NKGLIGENCE. 
 
 Ingalls V. Bills. 
 
 court say that the proprietors of public conveyances are liable at all 
 events for the baggage of passengers ; but as to injuries to their per- 
 sons, they are only liable for the want of such care and diligence as is 
 characteristic of cautious persons. And in considering the subject 
 again, in the case of Hollister v. Nowlen,^ they say that " stage-coach 
 proprietors, and other carriers by land and water, incur a very different 
 responsibility in relation to the passenger and his baggage. For an 
 injury to the passenger, they are answerable only where there has been 
 a want of proper care, diligence, or skill ; but in relation to baggage, 
 thej'^ are regarded as insurers, and must answer for any loss not occa- 
 sioned by inevitable accident or the public enemies." 
 
 In a case which occurred in respect to the transportation of slaves, ^ 
 Cliief Justice Marshall, in giving the opinion of the court, says: " The 
 law applicable to common carriers is one of great rigor. 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." 
 So in the case of Stokes v. Saltonstall,^ the question arose and was 
 thoroughly discussed ; and the same opinions are maintained as in the 
 cases above cited from Wendell. And the whole subject is examined 
 by Judge Story, in his treatise on Bailments,^ with his usual learning, 
 and his result is the same. 
 
 If there is a discrepancy between the English authorities which have 
 been cited, we think the opinions expressed by Chief Justice Eyke and 
 Chief Justice Mansfield are most consonant with sound reason as 
 applicable to a branch of the law comparatively new, and, though given 
 at nisi priiis, are fully sustained by the discussions which the same sub- 
 ject has undergone in the courts of our own country'. We have said 
 as being the most consonant with sound reason or good common sense 
 as applied to so practical a subject ; because, if such a warranty were 
 imposed by force of law upon the proprietors of coaches and other 
 vehicles for the conveyance of passengers, they would in fact become 
 the warrantors of the work of others, over whom the^^ have no actual 
 control, and — from the number of artisans emploj'ed in the construc- 
 tion of the materials of a single coach — whom they could not follow. 
 Unless, therefore, b}^ the application of a similar rule, every workman 
 shall be held as the warrantor, in all events, of the strength, sufficiency, 
 
 1 19 Wend. 236. » 13 Pet. 181. 
 
 » Boyce v. Antlerson, 2 Pet. 155. * J§ 59-2-600.
 
 LATENT DEFECTS IN HIS VEHICLE. 123 
 
 Supreme Judicial Court of Massachusetts. 
 
 and adaptation of his own manufactures to the uses, designed, — which, 
 in a community like ours, could not be practically enforced, — the war- 
 ranty would really rest on the persons purchasing the article for use, 
 and not upon the makers. 
 
 If it should be said that the same observations might be applied to 
 ship-owners, the answer might be given that they have never been held 
 as the warrantors of the safety of the passengers whom they conveyed ; 
 and as to the transportation of goods, owners of general ships have 
 always been held as common carriers, for the same reasons that carriers 
 on land are bound for the safe delivery of goods intrusted to them. 
 But as it respects the seaworthiness of a ship, the technical rules of law 
 respecting it have been so repeatedly examined, and the facts upon 
 which they rest so often investigated, that the questions which arise are 
 those of fact and not of law, and in a vast proportion of instances 
 depend upon the degree of diligence and care which are used in the 
 preservation of vessels, and practically resolve themselves into questions 
 of negligence ; so that the rules are very few that arise from the main- 
 tenance of the doctrine that a ship must be seaworthy in order to be the 
 subject of insurance. 
 
 The result to which we have arrived, from the examination of the case 
 before us, is this: That carriers of passengers for hire are bound to use 
 the utmost care and diligence in the providing of safe, sufficient, and 
 suitable coaghes, harnesses, horses, and coachmen, in order to prevent 
 those injuries which human care and foresight can guard against; and 
 that 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 
 ai-ises 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 oversight, 
 then the proprietor is not liable for the injury, but the misfortune must 
 be borne by the sufferer as one of that class of injuries for which the 
 law can afford no redress in the form of a pecuniary recompense. And 
 we are of opinion that the instructions which the defendants' counsel 
 requested might be given to the jury in the present case were correct 
 in point of law, and that the learned judge erred in extending the 
 liiibility of the defendants further than was proposed in the instructions 
 requested. 
 
 The point arising on the residue of the instructions was not pressed
 
 124 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 in the argument ; and we see no reason to doubt its correctness, pro- 
 vided tlie peril to which the plaintiff was exposed arose from a defect 
 or accident for which the defendants were otherwise liable,* 
 
 New trial granted. 
 
 2. LIABILITY OF CAERIER FOR INJURY TO PASSENGER FROM DE- 
 FECTS m HIS VEHICLE. 
 
 Readhead v. Midland Railway Company.* 
 Court of Queen's Bench, 1867, and Court of Exchequer Chamber, 1869, 
 
 1. Measure of Liability. — A carrier of paesengers is not answerable as an insurer for 
 
 the safety of his vehicles and appliances, but is liable for an accident which may- 
 happen to a passenger from any defect therein which might have been prevented 
 by the exercise of due care on his part. 
 
 2. Illustration — Breaking of "Wheel througrh Secret Defect.— A passenger was 
 
 injured in consequence of the breaking of the tire to a wheel of a railway carriage. 
 The tire broke in consequence of an air-bubble which had remained there in its orig- 
 inal manufacture. It was shown that the occasional presence of air-bubbles in the 
 tires of railway-car wheels could not be prevented by any means known to the manu- 
 facturer of such wheels, and that their existence could not be discovered by any 
 known tests. It was held that the passenger could not recover damages from the 
 railway company. 
 
 Declaration: That the defendants were carriers of passengers by- 
 railway from Nottingham to South Shields for reward ; that the plain- 
 tiff became a passenger, to be safely and securely carried by them as 
 such carriers, in a certain train, for reward ; that the defendants man- 
 aged and conducted the train so carelessly, and took so little care in 
 providing a proper and safe carriage, and were so careless and negligent 
 in examining from time to time the wheels of the carriage in which the 
 plaintiff was, that the carriage was broken to pieces and the plaintiff 
 injured. 
 
 Plea, not guilty. 
 
 At the trial before Lush, J., at the Durham Spring Assizes, 1866, the 
 evidence given for the plaintiff was, that he was a second-class passen- 
 ger from Nottingham to South Shields by an express train on the 
 defendants' railway ; he changed carriages at Trent, and after proceed- 
 
 • Reported, L. R. 2 Q. B. 412. The case was tried at nisi prius before Lush, J. It was 
 argued in banc before Lush, Mellor, and Blackburn, JJ. It was again argued on appeal in 
 the Exchequer Chamber (L. R. 4 Q. B.379) before KeIly,C. B., Byles, Keating, and Montague 
 Smith, JJ., and Channel! and Iramwell, BB. 
 
 ' Jones V. Boyce, 1 Stark. 493.
 
 LATENT DEFECTS IN HIS VEHICLE. 125 
 
 Englisli Court of Queen's Bench. 
 
 ing some distance, while the train was going at great speed, the carriage 
 in which he was riding began to oscillate, then left the rails, and ulti- 
 mately broke away from the first part of the train and turned over. 
 The plaintiff was very seriouslj'- injured. It was also suggested that the 
 train was not brought to a stand-still so soon as it ought. This, how- 
 •ever, was conclusively negatived by the defendants' evidence. It was 
 proved on the part of the defendants that the cause of the accident was 
 the giving way of one of the wheels of the carriage in which the plain- 
 tiff was. The tire of the wheel had broken into three pieces, owing to 
 a flaw in the welding, caused by an air-bubble. Several witnesses were 
 called, who stated that such a defect would sometimes occur in spite of 
 the greatest care on the part of the manufacturer ; that it could not be 
 discovered in the process of manufacture, nor afterwards, either by the 
 eye or from the ringing of the metal. It was further proved that the 
 carriage in question, which belonged to the London and North- Western 
 Company (being used by the defendants in the mutual arrangements of 
 the two companies), had been examined at the usual places, — amongst 
 others, at Trent, — and that the wheel, on hammering, then rang true. 
 The tire was of considerably more than the minimum thickness to which 
 it is found, in practice, safe to wear tires. 
 
 The learned judge told the jury that the material question was 
 whether, upon the wliole of the evidence, they were of opinion that the 
 defendants were guilty of negligence. If the injury to the plaintiff was 
 properly due to an accident, — that is to say, if it could not reasonably 
 be foreseen, and was not due to any fault or carelessness on the part of 
 the defendants, — the plaintiff was not entitled to recover. The learned 
 judge then pointed out that the evidence given on the part of the plain- 
 tiff did not substantiate the charge in the declaration, which he read to 
 tliem. The evidence for the defendants showed clearly that the accident 
 was caused b}' the breaking of the tire of the wheel. The fact that the 
 carriage did not belong to the defendants made no difference in their 
 liability. Was there any evidence of negligence on the part of the 
 defendants in not detecting the fault in the wheel? If, as the evidence 
 went to show, the defect in the wheel could not be detected either by 
 the eye or the ear, then there was no negligence on the pai't of the 
 defendants. Tlie learned judge then went tlirough the evidence as to 
 the impossibility of always preventing such latent flaws in the man- 
 ufacture, or of detecting them during the process or by subsequent 
 examination. The jury were to say, on the wliole evidence, whether 
 they were satisfied that the injury to the plaintiff was due to the neg-
 
 126 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 leet of the defendants, or whether it was not one of those accidents to 
 which all are subject, in which, though injuries arise, no one is charge- 
 able in law for the consequences. If the jury found any fault on the 
 part of the defendants, as a breach of duty on their part which the jury 
 might think the defendants ought reasonably to have performed, then 
 the verdict would be for the plaintiff. 
 
 The jury returned a verdict for the defendants. 
 
 A rule was obtained for a new trial, on the ground of misdirection of the 
 judge in telling the jury that the defendants were entitled to the verdict 
 if the accident was caused by the latent defect in the tire of the wheel. 
 
 June 20, 1866, Aspimoall^ Q. C., and ^empZay, showed cause. — 
 The plaintiff, in order to show that there has been misdirection, must 
 contend that there is an implied warranty on the part of a carrier of 
 passengers that the carriage in which the passenger travels is road- 
 worthy for the journey. There is no authority for such a proposition. 
 Bremner v. Williams ' will be cited by the other side, but the dictum 
 of Best, C. J., that every coach proprietor warrants to the public that 
 his stage-cT)ach is equal to the journey it undertakes, was not necessary 
 to the decision of the case. Sharp v. Grey^ will also be reUed on; 
 but there is a distinction between that case and the present. There, by 
 unscrewing the iron clamps and taking off the wooden frame, the defect 
 in the axletree might have been discovered ; but here, by no examina- 
 tion whatever could the defendants have discovered the defect in the 
 tire of the wheel. And it is also to be observed that Tindal, C. J., 
 in that case directed the jury to consider whether there had been on 
 the part of the defendant that degi-ee of vigilance which was required 
 by his engagement to carry the plaintiff safely ; so that that case was 
 decided on the ground of negligence on the part of the carrier. The 
 law on the subject, however, is correctly stated b3' Alderson, J., in his 
 judgment: "A coach proprietor 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." The evi- 
 dence here is that it was impossible to discover the defect until the tire 
 was actually broken. As pointed out by Sir James Mansfield in Christie 
 V. Origgs,^ there is a distinction between a contract to carry goods and 
 a contract to carry passengers ; for the goods the carrier is answerable 
 at all events. He does not warrant the safety of the passengers, but 
 only that as far as human care and foresight will go their safe convey- 
 
 » 1 Car. & P. 414, 416. « 9 Bing. 467. * 2 Camp. 81.
 
 LATENT DEFECTS IN HIS VEHICLE. 127 
 
 English Court of Queen's Bench. 
 
 ance will be provided for. He is not liable for the consequences of a 
 pure accident. Chrote v. Chester and Holyhead Railway Gompayiy'^ 
 shows that if a competent person is employed to make the tire, and he 
 uses due and reasonable care and employs proper materials in the work, 
 the railway company will not be liable for the defect in the tire which 
 it was impossible to detect, and so prevent the accident. There is a 
 dictum of Cress WELL, J., in Benett v. Peninsular Steamboat Company"^ 
 which may be relied on by the plaintiff, viz., that Sharp v. Grey^ lays 
 down the law that a carrier is bound at all events to provide a sound 
 coach. But the learned judge's observation had no direct bearing on 
 the question then before the court. 
 
 [Blackburn, J. — It was held in Brown v. Edgington "* that there is 
 an implied warranty that an article furnished by a manufacturer shall 
 be fit and proper for the purpose for which it is supplied.] 
 
 Manisty, Q. C, and T. Jones, in support of the rule. — The point is 
 new, and the authorities bearing upon it have been already cited. It is 
 clear that the ruling of Best, C. J., in Bremner v. Williams,^ and the 
 case of Sharp v. Grey,^ are direct authorities that there is a warranty 
 on the part of a coach-owner that his coach is fit for the journey. It 
 is a sound rule of law, because the passenger injured thus has his 
 remedy against the company, and the company against the person who 
 supplied the insufficient vehicle. By analogy to the case of the owner 
 of a ship who warrants his ship seaworthy for the voyage, so a carrier 
 of passengers warrants the vehicle roadworthy for the journey. 
 
 Cur. adv. vult. 
 
 May 15, the following judgments were delivered: — 
 
 Lush, J. — This was an action, tried before me, for an injury caused 
 by the breaking down and overturning of the carriage in which the 
 plaintiff was travelUng as a passenger on the defendants' railway. The 
 accident arose from the fi-acture of one of the wheels of the carriage, 
 the tire of which had split into three pieces, owing, as it was afterwards 
 discovered, to a latent flaw in the weldnig ; and it was proved, on the 
 part of the defendants, that at the commencement of the journey the 
 wheel was to all appearances strong and sound ; 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 beforehand ; 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. 
 
 I 2 Exch. 251. » 9 Bing. 457. » 1 Car. & P. 414. 
 
 « 6 C. B. 782. * 2 Man. & G. 279. • 9 Bing. 457.
 
 128 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 I directed the jury that, if they believed this evidence, the defendants 
 were not responsible for the accident ; and they accordingly found their 
 verdict for the defendants. 
 
 A rule was granted for a new trial, on the ground that a carrier of 
 passengers is bound at his peril to provide a roadworthy carriage, and 
 is consequently liable if the carriage turns out to be defective, notwith- 
 standing that the infirmity was of such a nature that it could neither be 
 guarded against nor discovered. 
 
 The question thus nakedly raised is one of vast importance at the 
 present day, both to railway companies and passengers ; and there 
 being no case in our reports in which it has been argued and adjudi- 
 cated, we took time to consider our judgment. Having done so, and 
 given to the subject the best consideration in my power, I adhere to the 
 opinion that the law imposes no such liability on railway companies ; 
 though, as my brother Blackburn has come to a different conclusion, 
 I express that opinion with some degree of diffidence. 
 
 It is not contended that the obligation of a carrier of passengers is 
 coextensive with that of a carrier of goods, who, by the custom of the 
 realm, is placed in the position of an insurer, subject only to the excep- 
 tions of loss or damage by "the act of God or the public enemies of 
 the crown." The reasons upon which that liability is based, and which 
 are expressed by Holt, C. J., in Coggs v. Bernard,^ and by Best, C. 
 J., in miey v. Horne,^ are inapplicable to a carrier of passengers. 
 The latter has not the same control over persons which he has over 
 goods, nor the same opportunities of abuse and misconduct, the appre- 
 hension of which gave rise to this rigorous rule of law ; and therefore the 
 law has never imposed upon him tlie responsibility of an insurer. The 
 undertaking of a carrier of passengers, says Dr. Story in his work on 
 Bailments,^ is not an undertaking absolutely to " carry safely," but 
 only to exercise " due care and diligence in the performance of his 
 duty." But it is contended that in this particular part of his duty, 
 viz., the providing a suitable vehicle, his undertaking goes bej'ond the 
 measure of " due care and diligence," and includes a warranty that the 
 carriage which he provides is sound and free from all defects whieli 
 render it unfit for the service, though he has used every means in his 
 |)Ower to make it sound, and though he could not by any amount of 
 care, skill, or vigilance have ascertained that it was not so. The 
 language of Story just quoted does not suggest any such qualification, 
 and surely so important an element in the contract about which he is 
 
 » 2 Ld. Raym. 909, 91S. 2 5 Bing. 217, 220. ' § 601.
 
 LATENT DEFECTS IN HIS VEHICLE. 129 
 
 English Court of Queen's Bench. 
 
 treating would have- been noticed by that learned writer if he had sup- 
 posed it to exist. No such Hability is, however, hinted at throughout 
 the work ; nor, as I am aware of, in any other text-book. The proposi- 
 tion is one which I cannot adopt witliout authority; because I can see 
 no reason why a carrier should be held to warrant more than due care 
 and diligence can enable him to perform, as respects the qualitj^ of his 
 carriage, when it is admitted that he is under no such liability as respects 
 the conduct or management of it. 
 
 We were pressed with what were alleged to be analogous cases of 
 a ship-owner, who is held to warrant the seaworthiness of his vessel, 
 and of a manufacturer of goods ordered for a given purpose, who, 
 it was contended, is held to warrant their fitness and sufficiency for 
 that purpose. As to ship-owners, I agree there is abundant authority 
 for the doctrine laid down ; and moreover that there is no distinction, 
 in this respect, between a carrier by water and a carrier by land. But 
 it is to be observed that whenever this particular liability of a ship- 
 owner is mentioned, it has reference to his obligation as the carrier of 
 cargo. In that capacity, he is an insurer of its safe delivery, subject 
 only to the excepted perils. His warrant}' of seaworthiness, in such a 
 case, springs out of and necessarily results from the absolute duty he 
 has undertaken ; and it is not a warranty superadded to, and exceeding 
 the terms and measure of, his contract to carry, as it would be if it 
 were extended to a carrier of passengers. A carrier of goods by 
 land may with equal propriety be said to warrant the roadworthiness 
 of his carriage, because he warrants against every casualty by which 
 the goods might be lost or damaged on the journey. 
 
 As regards the second case put, viz., that of the manufacturer who 
 supplies goods to order for a given use or purpose, I do not stop to 
 consider whether the analogy is so complete as the argument assumes it 
 to be, because it does not appear to me that the case mainly relied on, 
 viz., Brovra v. Edgington^^ sanctions the doctrine which is sought to 
 be deduced from it. Upon carefully examining the facts there, it will 
 be found that no such question as that we have now to determine arose 
 in the case. The insufficiency of the rope was attributable to causes 
 which imply blame in the manufacturer, viz., to either a want of judg- 
 ment, or a want of care, or skill, both, or all. The rope was not strong 
 enough for the purpose for which it was known by the defendant to 
 have been required, it having been made of too small a size, or of 
 faulty materials., or been badly put together ; and whatever the cause 
 
 I 2 Man. & G. 270.
 
 130 LIABILITY OF THE CARKIEK FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 of its failure was, it was one which might have been prevented, and it 
 was assumed by the court, as it was assumed in the case of Jones v. 
 BrigJit,^ that the manufacturer might, and therefore ought, to have 
 made it sufficient for the purpose. The main contest in the case 
 was whether the defendant was liable, seeing that he was not the 
 manufacturer of the rope, but had procured it from a rope-maker. 
 The question of liability for a hidden, undiscoverable, and unavoid- 
 able defect was not present to the mind of any of the judges wlio^ 
 decided that case. I cannot, therefore, regard it as an authority t<>^ 
 the extent necessary to sustain the plaintiff's argument, nor am I aware 
 of any other case on that point which establislied such a position. 
 
 I do not feel it necessary to review in detail the cases which more 
 directly bear upon the liabihty of a carrier of passengers. They ari' 
 quoted by Story as the authorities for the rule which he la3's down, and, 
 in my judgment, they do not carry the liability further than he has- 
 stated it. In all of them, where it has become necessary to define that 
 liability, the judges have carefully distinguished between a carrier of 
 passengers and a carrier of goods, and have pointedly declared that thi- 
 liability of the former stands on the ground of negligence alone. ^ Un- 
 doubtedly there are expressions used in some of those cases which, if 
 taken alone, and without reference to the particular facts, favor thf 
 argument of the plaintiff. See per Lord Ellenborough, in Israel v. 
 Clark ]^ Best, C. J., in Bremner v. Williams;'^ and per Gaselee and 
 BosANQUET, JJ., in Sharp v. Grey.^ But reading such expressions as 
 they should be read, in connection with and as applicable to the facts 
 of each case, it is to my mind evident that the learned judges who used 
 them did not intend them to be understood in the sense now imputed 
 to them. The decisions in those cases in which such expressions are 
 used seem to me against the plaintiff, rather than decisions in his favor. 
 In Sharp v. Grey,^ the case most pressed in the argument by the plain- 
 tiff's counsel, as also in the case of Christie v. Griyys,'' the axletree had, 
 witliout any external cause to account for it, suddenly snapped. If 
 there was such a warranty as is now insisted on, that warranty had 
 clearly been broken, for the coach had turned out to be not road- 
 worthy. There was, therefore, nothing to go to the jury but the 
 amount of damages ; whereas in each case the question was left to 
 the jury whether the defendant was liable as guilty of a want of due 
 
 1 6 Bing. 633. » 4 Esp. 259. 
 
 s See Aston . Heaven, 2 Esp. 533; Christie * 1 Car. & P. 416. 
 
 V. Griggs, 2 Camp. 79; Crofts v. Waterliouse, ^ 9 Bing. 453. 
 
 8 Biug. 321. « 9 Biug. 457. T 2 Camp. 79.
 
 LATENT DEFECTS IN HIS VEHICLE. 131 
 
 English Court of Queen's Bench. 
 
 care or not. In Sharp v. Grey, the jury found a verdict for the plain- 
 tiff, which the court refused to disturb ; in Cliristie v. Griggs, they found 
 for the defendant, and no motion appears to have been made to set 
 this verdict aside. Coming down to a more recent period, I find the 
 same doctrines laid down by the Lord Chief Justice of this court in 
 Stokes V. Eastern Counties Railway Company.^ That was a case exactly 
 similar to the present. The wheel had broken from a latent flaw in the 
 welding, and great injury had been done to several passengers. After 
 a very lengthened trial, the jury found a verdict for the defendants ; 
 and although the plaintiff in that case, and many other persons, were 
 deeply interested in questioning the ruling of the Lord Chief Justice, 
 no attempt was made to set aside the verdict. 
 
 As far, therefore, as the authorities in this country go, they are against 
 the position taken by the plaintiff ; and considering that many such acci- 
 dents have occurred since the introduction of railways, the fact that 
 this is the first time so extensive a liability has been insisted on argues 
 a general impression against it. But though the question has not before 
 been presented for solemn adjudication in this country, it has been 
 raised more than once in the courts of the United States, and in every 
 case the judgment has been in favor of the carrier. In Ingalls v. Bills,^ 
 the court delivered an elaborate judgment, reviewing all the authorities, 
 English and American, and affirming the doctrine that a carrier of pas- 
 sengers is liable only for negligence. 
 
 For these reason^, I am of opinion that the rule must be discharged. 
 
 Mellor, J. — In this case the plaintiff, being a passenger on the 
 line of defendants' railway, sustained an injury by the breaking of one 
 of the wheel-tires of the carriage in which he was travelling, owing to a 
 latent defect in its construction, not discoverable by the most careful 
 examination. 
 
 My brother Lush, who presided at the trial, in leaving the case to the 
 jury, told them that a carrier of passengers for hire was bound to use 
 the utmost care, skill, and diligence in every thing that concerned the 
 safety of passengers ; but that if the injury was due to a hidden defect 
 in the carriage, which the utmost care and skill could not discover, the 
 defendants were not responsible. I have come to the conclusion that 
 such a direction was right, and that the rule for a new trial must be dis- 
 charged. 
 
 The propriety of that direction depends upon the nature and extent 
 
 1 3 Fost. & Fin. 691. » 9 Mete. 1, cited in the 7th ed. of Story on Bail. 665.
 
 132 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 of the liability which a carrier of passengers for hire undertakes with 
 regard to each passenger. 
 
 The responsibility, both of common carriers of goods for hire and of 
 common carriers of passengers for hire, notwithstanding some impor- 
 tant differences between them, rests for its foundation upon the general 
 custom of the realm ; in other words, upon the common law ; and the 
 liability of each class of carriers (where it is not affected by some 
 special contract) arises from a duty implied by law, although the law 
 will raise a contract as springing from that duty.^ Until the time of 
 Dale V. Hall,^ it seems to have been the usual mode to declare against 
 common carriers, either of goods or passengers, setting forth the cus- 
 tom of the realm ; when it was supplanted by the modern mode of 
 declaring either in case for breach of dut}^ or on the contract arising 
 out of the duty so implied by law. In Coggs v. Bernard,'^ Lord Holt, 
 in defining his fifth sort of bailment, says, first, "if it [the delivery of 
 goods] be to a person of the first sort, [that is, one who exercises a 
 public employment] and he is to have a reward, he is bound to answer 
 for the goods at all events ; and this is the case of the common carrier, 
 common hoyman, master of a ship, etc. * * * Xhe law charges 
 this person, thus intrusted to carry goods, against all events but acts of 
 God and the enemies of the king. For though the force be never so 
 great, as if an unreasonable number of people should rob him, never- 
 theless he is chargeable. And this is a politic establishment contrived 
 by the policy of the law for the safety of all persons, the necessity of 
 whose affairs oblige them to trust these sort of persons, that they may 
 be safe in their ways of dealing ; for else these carriers might have an 
 opportunity of undoing all persons that had any dealings with them, by 
 combining with thieves, etc., and yet doing it in such a clandestine man- 
 ner as would not be possible to be discovered. And this is the reason the 
 law is founded upon in that point." And in the case of Riley v. Horne^^ 
 Chief Justice Best, in treating upon the same subject, said: "When 
 goods are delivered to a carrier, they are usually no longer under the 
 eye of the owner ; he seldom follows or sends any servant with them to 
 the place of their destination. If they should be lost or injured by the 
 grossest negligence of the carrier or his servants, or stolen by them, or 
 by thieves in collusion with them, the owner would be unable to prove 
 either of these causes of loss ; his witnesses must be the carrier's ser- 
 
 1 Bretherton v. Wood, 3 Brod. & B. 54; 3 2 Ld. Raym. 913; 1 Smith's Ld. Cas. (6th 
 
 AnseU V. Waterhouse, 6 Mau. & Sel. 385. ed.) 189. 
 
 '■i 1 WUs. 281. * 6 Bing. 220.
 
 LATENT DEFECTS IN HIS VEHICLE. 133 
 
 English Court of Queen's Bench. 
 
 vants, and they, knowing that they could not be contradicted, would 
 excuse their masters and themselves. To give due security to property, 
 the law has added to that responsibility of a carrier which immediately 
 arises out of his contract to carry for reward, namely^ that of taking all 
 reasonable care of it, the responsibility of an insurer." This judgment 
 is cited with approbation by Mr. Justice Story, ^ and, as far as I am 
 aware, has been generally considered truly to express the reasons upon 
 which the policy of the law with regard to common carriers of goods has 
 been founded. The liability of a common carrier of goods is therefore 
 that of an insurer, arising out of the policy of the law, which superadds 
 such a responsibility to that springing merely out of a contract to cai-ry 
 for reward, viz., '■'■the taking all reasonable care of the goods delivered 
 to be carried." 
 
 The policy of the law with regard to common carriers of goods for 
 hire, and the reasons assigned for it by Lord Holt and Chief Justice 
 Best, appear to have no application to the case of carriers of passengers 
 for hire ; and hence by one writer on the subject it has been stated that 
 " a stage-coach owner who carries passengers only is not, properly speak- 
 ing, a common carrier ; he does not warrant the safety of the passengers 
 at all events, but only that, so far as human care and foresight will go, 
 their safe conveyance will be provided for." ^ 
 
 We have, however, seen that his liability, like that of the carrier of 
 goods, arises out of the duty implied by law, and that the declaration 
 may be either in case for the breach of such duty, or on the contract 
 springing from it, as was said by Holroyd, J., in the case of A7isell v. 
 Waterhorise : ^ "It seems to me, therefore, that although the law will 
 raise a contract with a common carrier to be answerable for the careful 
 conveyance of his passenger, nevertheless he may be charged in an 
 action upon the case for a breach of his duty." Does, then, the law, in 
 the case of a carrier of passengei's for hire, superadd any liability 
 beyond that of providing for " the careful conveyance of his x>assengers " 9 
 
 In Crofts V. Waterhouse,'^ which was an action against a stage-coach 
 proprietor by a passenger injured by the overset of the coach, Best, C. 
 J., said: "This action cannot be maintained unless negligence be 
 proved. » * * xhe coachman must have competent skill, and 
 must 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 
 
 > story on Bail., § 491. « 6 Mau. & Sel. 393. 
 
 » Smith's Merc. Law (7th eel.), 282. ■• 3 Bing. 319, 321.
 
 134 LIABILITY OF THE CARKIEK FOR NEGLIGENCE. 
 
 Readliead v. Midland Railway Company. 
 
 with lights by night. If there be the least failure in any one of these 
 things, the duty of the coach proprietors is not fulfilled, and they are 
 answerable for any injury or damage that happens. But with all these 
 things, and when every thing has been done that human prudence can 
 suggest for the security of the passengers, an accident may happen. 
 * * * If, having exerted proper skill and care, he from accident 
 gets off the road, the proprietors are not answerable for what happens 
 from his doing so." And Park, J., in the same case, said: " A carrier 
 of goods is liable in all events except the act of God or the king's 
 enemies. A carrier of passengers is only liable for negligence." So, 
 in Aston y. Heaven.,^ it was contended that coach-owners were liable in 
 all cases except where the injury happens from the act of God or the 
 * king's enemies; but Etre, C. J., held that cases of loss of goods by 
 carriers were totally unlike the case before him. In those cases the 
 parties are protected, but as against carriers of persons, the action 
 stands on the ground of negligence alone. In Christie v. Griggs,^ in 
 which the accident arose from the breaking of an axletree. Sir James 
 Mansfield said: "If the axletree was sound as far as the human eye 
 could discover, the defendant was not liable. There was a difference 
 between a contract to carry goods and a contract to carry passengers. 
 For the goods the carrier was answerable at all events ; but he did not 
 warrant the safety of passengers. His undertaking as to them went no 
 further than this, that, as far as human care and foresight could go, he 
 would provide for their safe conveyance. Therefore, if the breaking 
 down of the coach was purely accidental, the plaintiff had no remedy 
 for the misfortune he had encountered." 
 
 Thus we see that the test in case of a carrier of passengers is, has 
 he, " as far as human foresight can go, provided for their safe con- 
 veyance " ? Of course this includes care and foresight in the making 
 and procuring, as well as in using, the carriage. 
 
 In the case of Grote v. Chester and Holyhead Railway Company,'^ 
 where Sharp v. Grey,"^ to which I shall presently refer, was cited for 
 the opinion of Alderson, J., that "a coach proprietor 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 investiga- 
 tion," Parke, B.,^ remarked: "In that case the coach proprietor is 
 liable for an accident which arises from an imperfection in the vehicle, 
 
 1 2 Esp. 633. * 2 Gamp. 81. that of Sir James Allan Park, a justice of 
 
 ' 2 Excb. 255. the Court of Common Pleas, and not Sir 
 
 ♦ 9 Bing. 457. James Parke, a baron of the Court of Ex- 
 
 6 [Mr. Justice Mellor is in error at this chequer, afterwards elevated to the peerage 
 
 point. The language which he quotes is under the title of Wenslej'dale. — Ed.]
 
 LATENT DEFECTS IN HIS VEHICLE. 135 
 
 English Court of Queen's Bench. 
 
 although he has emploj^ed a clever and competent coachmaker." Lord 
 Wknsletdale, by that obsei-vation, merely intended to express that a 
 coach proprietor could not shelter himself from the consequences of 
 using an unsafe coach by the fact that he had employed a competent 
 coachmaker to make it; which differs materially from implying a 
 warranty against a defect which no amount of care or skill could dis- 
 cover. 
 
 The case of Burns v. Cork and Bandon Railway Company * comes the 
 nearest in its facts to the present. In that case, in answer to an action 
 for not carrying a passenger safely, it was specially pleaded, in sub- 
 stance, that, whilst he was being carried in a carriage on the defendants' 
 railway, a fracture occurred in a crank-pin in one of the leading wheels 
 of the locomotive engine, which was occasioned by an original defect in 
 the material and construction of such crank-pin, which defect, before 
 the fracture occurred, was not capable of being detected by the defend- 
 ants upon due or proper examination or observation, and that the crank 
 was purchased with the locomotive engine, in due course of business, 
 from competent manufacturers, and was not made by the defendants, 
 and that before the commencement of the journey the defendants duly 
 examined the said engine and crank-pin, and had not any notice of the 
 defect in the same. To this plea the plaintiff demurred ; and Chief 
 Baron Pigot, in delivering the opinion of the court, stated the question 
 to be whether, taking all the averments in the plea together, the defend- 
 ants had stated facts which exempted them from liability for the breach 
 of contract admitted by the plea. He then proceeded: "I am of 
 opinion they have not, according to the existing state of the authorities. 
 Although a carrier of passengers does not warrant the safety or the due 
 arrival of his passengers, yet I consider that he must be considered as 
 warranting that the vehicle in which he conveys them is, at the time of 
 the commencement of the journey, free from all defects, at least as far 
 as human care and foresight can provide, and perfectly roadworth3\" 
 He then refers to Christie v. Griggs,^ Sharp v. Grey,^ and Grate v. Ches- 
 ter and Holyhead Railway Company,'^ and proceeds as follows: "But, 
 applying Sir J. Mansfield's test, have they shown in their plea that, as 
 far as human care and foresight could go, they provided for the safety 
 of their passengers? I think they have not. Their plea does not con- 
 tain any averment as to the care and skill applied to the manufacture of 
 the engine, or as to the care or skill exercised by them in the selection 
 or inspection of it. All the averments in their pleas are quite consistent 
 
 1 Irish Rep. 13 C. L. 543. « 2 Camp. 79. » 9 Bing. 457. * 2 Exch. 251.
 
 136 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 with gross and culpable carelessness on the part of the manufacturers, 
 and with gross and culpable negligence on their part in the purchase of 
 it from the manufacturers. If they had been the manufacturers of the 
 engine, they would have been bound to aver and prove that due care 
 and skill had been exercised in the process of its manufacture. Are 
 they to be I'elieved from legal liability because they allege that they have 
 purchased it from a competent manufacturer? I think that would be a 
 distinction dangerous to the public, and that, as Alderson, J., says, 
 railway companies might buy ill-constructed or unsafe vehicles and the 
 public be without remedy." 
 
 Now, although one or two ambiguous phrases are used by the Chief 
 Baron in his judgment, arising out of some error in the collocation of 
 the words, he never intended, as it appears to me, to assert that there 
 existed an implied warranty against latent defects which no amount of 
 skill or care could have discovered ; otherwise I should have expected 
 it to have been at once so expressed, which would have rendered further 
 reasons unnecessary. I think that the course of the argument and of 
 the judgment show that the disqussion really turned upon the question 
 of negligence, and not of warranty. 
 
 The authorities to which I have referred sufficiently illustrate the 
 distinction between the liability of carriers of goods and that of carriers 
 of passengers. The liability of the former is that of an insurer, 
 whilst that of the latter is only for negligence. It further appears 
 from these cases that the negligence which renders a carrier of pas- 
 sengers liable is something which might have been avoided by the 
 exercise of care, skill, or foresight, and that an accident which results 
 from some cause which no amount of care, skill, or foresight could have 
 discovered cannot be said to be the result of negligence in the carrier. 
 
 In the case of carriers by water the same distinctions hold, so far as 
 I am aware. In Lyon v. Mells,^ Lord Ellenborough said: "In every 
 contract for the carriage of goods, between a person holding himself 
 forth as the owner of a lighter or vessel ready to carry goods for hire, 
 and the person putting goods on board, or employing his vessel or 
 lighter for that purpose, it is a term of the contract on the part of the 
 carrier or lighterman, implied by law, that his vessel is tight, and fit for 
 the purpose or employment for which he offers and holds it forth to the 
 public ; it is the very foundation and immediate substratum of the 
 contract that it is so. The law presumes a promise to that effect, 
 without actual proof, and every reason of sound policy and public con- 
 
 1 6 East, 428, 437.
 
 LATENT DEFECTS IN HIS VEHICLE. 137 
 
 English Court of Queen's Bench. 
 
 venience requires it should be so." There are many authorities to the 
 same effect, which it is not necessary to cite. 
 
 If it be said that it is a strange thing that a warrant}'^ of seaworthiness 
 should be implied by law in the case of goods, and not of passengers, I 
 can only answer that in case of goods the warranty of seaworthiness is 
 incidental to the liability of the carrier as an insurer. In Coggs v. Ber- 
 nard,^ Lord Holt makes no distinction in this respect between carriers 
 by land and carriers by water, and many of the reasons stated by him 
 and Best, C. J.,^ to be the foundation of the liability of a carrier of 
 goods by land apply with equal force to the carrier of goods by water ; 
 and certainly in no case, so far as I am aware, has there been a sugges- 
 tion that the foundation of the liability of a carrier of passengers by 
 water depends upon other considerations than those which regulate the 
 liability of carriers of passengers by land. 
 
 In the present case the direction of my brother Lush to the jury 
 appears to me to have been unexceptionable, and in strict conformity 
 with the cases above referred to. The fracture of the wheel-tire, by 
 itself, and unexplained, might have been sufficient to raise a presump- 
 tion of negligence against the defendants. ^ But upon the direction of 
 my brother Lush, when the explanatory evidence had been given, it 
 must be taken to have been in fact found by the jury that the break- 
 ing of the wheel- tire was due to a hidden defect which no amount of care 
 or skill could have discovered., either in the manufacture, purchase., or use. 
 I was at one time in doubt whether the principles applied and explained 
 in the case of Brown v. Edgington,^ said by Parke, B., in Sutton v. 
 Temple,^ "to be long-settled law," did not govern this case; but I am 
 now satisfied that they do not. In that case, although the " scienter y 
 or guilty knowledge," as it was termed, was negatived by the jury, 
 there was notliing to prove that the insufficiency of the rope might not 
 have been discovered upon a careful examination ; and I can find 
 nothing to show that the doctrine now contended for was in the minds 
 of the judges who decided it. If the liability of a carrier of passengers 
 for hire springs from the custom of the realm, or from an actual con- 
 tract made, why are we to imply a warranty as to the absolute .efficiency 
 of the carriage, when we do not imply any such warranty with regard to 
 the other incidents of the journey? It would appear to be quite as 
 reasonable to imply a warranty against accidents as against a hidden 
 
 > 2 Ld. Raym. 909, 918. 747; Bird v. Great Northern E. Co., 28 L. J. 
 
 2 In Riley v. Home, 5 Bing. 220. (Excli.) 3. 
 •' Skinner v. London etc. R . Co., 5 Exch. ^ 2 Man. & G. 279. 
 
 787; Carpue v. London etc. R. Co., 5 Q. B. & 12 Mee. & W. 64.
 
 138 LIABILITY or THE CARIJIEK FOR NEGLIGEXCE. 
 
 Keadhead v. Midland Railway Company. 
 
 defect which no amount of skill or care could discover. I think that it 
 would be extremely dangerous, and somewhat inconsistent, to extend 
 the doctrine of implied warranty beyond the jyossible means of the alleged 
 warrantor to guard against the defects to which Jiis warranty is supposed 
 to extend. 
 
 The cases cited in support of the plaintiff's right to recover do not, 
 I think, when examined, go the length attributed to them ; and they are 
 neither so consistent nor precise as to conclude us from exercising our 
 own judgment upon the facts before us; and, notwithstanding some 
 expressions attributed to Lord Ellenborough, and Best, C. J., I cannot 
 but think that those learned judges had not present in their minds the 
 idea that there existed in the case of carriers of passengers any abso- 
 lute warranty of roadworthiness. In Israel v. Clark.} where the injury 
 arose from the breaking of an axletree, the expressions used by Lord 
 Ellenborough are y&vy wide, viz., that " he should expect a clear land- 
 worthiness in the carriage itself to be established." Still, it is by no 
 means certain that he had in view a case of latent defect which no skill 
 or care could discover. No opinion was expressed showing whether he 
 considered that the cause of action rested upon negligence or upon the 
 doctrine of implied warranty. 
 
 In Bremner v. Williams,^ Best, C. J., is reported to have said " that 
 every coach proprietor warrants that his stage-coach is equal to the 
 journey it undertakes," and " it is his duty to examine it previous to the 
 commencement of every journey ." The latter words show to what mat- 
 ters he supposed the warranty to extend ; and I think that it is only fair, 
 considering the opinions already cited from other cases, in which, with 
 more consideration, he had treated this subject, to assume that he did 
 not refer to latent defects which could not be discovered on examination. 
 
 The decision which was most discussed before us is the case of Sharp 
 V. Grey,^ but I am bound to say that, although the opinions expressed by 
 Gaselee, J., and Bosanquet, J., in that case are apparently in antago- 
 nism to the direction given by my brother Lush, it is not very easy to see 
 that the judges who decided it had in their minds a case of latent defect 
 not discoverable by any amount of care or skill, or that thej' were 
 unanimous in laj'ing down any clear or precise rule of law which ought 
 to govern us in this case ; and it is to be observed that the Chief Justice. 
 TiNDAL, left the case to the jury as a question of fact, although in some- 
 what loose and general terms, viz., "whether there had been on the 
 part of the defendant that degree of vigilance which was required b}' his 
 
 « 4 Esp. 259. « 1 Car. & P. 414. » 9 Biug. 457.
 
 LATENT DEFECTS IN HIS VEHICLE. 139 
 
 English Court of Queen's Bench. 
 
 engagement to carry the plaintiff safely." And Park, J., is reported 
 to have said " it was a question of fact for the jury." And Alderson, 
 J., limits the extent of any implied warranty against defects to those 
 "which could be seen at the time of construction." He adds: " And 
 if the defendant were not responsible, a coach proprietor might buy ill- 
 constructed or unsafe vehicles and his passengers be without remedy." 
 
 There are several modern cases not referred to on the argument, 
 which show that the judges who tried them considered the action 
 against carriers of passengers for hire to be founded on negligence. 
 In Stokes v. Eastern Counties Railway Company,^ Chief Justice Cock- 
 burn thus expressed himself: " You are entitled to expect at the hands 
 of a railway company all that skill, care, and prudence can do to pro- 
 tect the public against danger and accidents, but you must carry that 
 principle into application as reasonable men. * * * if you are of 
 opinion that the flaw or crack had become visible prior to the accident ; 
 that upon careful examination — not with the aid of scientific authorities 
 and scientific instruments, but on an ordinary^ reasonably proper, and 
 careful examination, such as all feel ought to be made before the engines 
 are used, on which the safely of a whole train might depend — this 
 flaw might have been discovered ; and that either the examination did 
 not take place, or if it did, and the flaw was discovered, but the man, 
 with careless disregard of his own safety and of others whose lives and 
 limbs might be involved, treat( 1 all this with supine and reckless indif- 
 ference, then undoubtedly there is negligence established, for which the 
 company are and ought to be responsible." 
 
 That case is important, because the verdict was for the defendants, 
 and if the doctrine now contended for by the plaintiff be the correct 
 exposition of the law, the verdict in that case, if questioned, must have 
 been set aside. 
 
 Again, in Ford v. London and South- We stern Railway Company,^ 
 Cliief Justice Erle, in summing up the case to the jury, said: "The 
 action is grounded on neghgence. The railway company is bound to 
 take reasonable care, to use the best precautions in known practical use 
 for securing the safety and convenience of the passengers. "^ 
 
 In this state of the authorities in our own courts and in Ireland, we 
 are much assisted in arriving at a conclusion by several cases decided in 
 the courts of the United States, cited in a note to the seventh edition of 
 Story on Bailments, p. 565. In Ingalls v. Bills,* the late Mr. Justice 
 
 ' 2 Fost. & Fin. G91, 69?,, 094. 2 Fost. & Fin. 621, per Chief Justice Cock- 
 
 ' /d. 732. burn, to the same effect. 
 
 3 See also Pym v. Great Northern R. Co., < 9 Mute. 1, 1.5; ante, p. 123.
 
 140 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 Hubbard, in a very able judgment, in whicli the English and American 
 authorities are reviewed, states it to be the conclusion of the court, 
 " That carriers of passengers for hire are bound to use the utmost care 
 and diligence in the providing of safe, sufficient, and suitable coaches, 
 harnesses, 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, wliich might have been discovered 
 and remedied upon the most careful and thorough examination of it, 
 such accident must be ascribed to negUgence, 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 oversight, then the proprietor 
 is not liable for the injury, but the misfortune must be borne by the suf- 
 ferer as one of that class of injuries for which the law can afford no 
 redress in the form of a pecuniary recompense." This extract from the 
 judgment of Mr. Justice Hubbard, in my opinion, trul}' expresses the 
 rule of law applicable to the present case, and is in strict conformity 
 with my brother Lush's direction to the jury ; and were it not for the 
 opinion of my brother Blackburn to the contrary, I should have con- 
 sidered that it was supported by the loeight of English authority. 
 
 As the majority of the court are in favor of the defendants, and 
 think my brother Lush's direction right, the rule obtained by the 
 plaintiff will be discharged. 
 
 Blackburn, J. — Tliis was an action brought by a passenger on the 
 defendants' railway, to recover damages for an injury he had received, 
 owing to the breaking down of the carriage in which he was travelling. 
 
 On the trial before my brother Lush, it appeared that the carriage 
 was one belonging to the London and North- Western Railway Compan}-, 
 which had been for some time in use by them, and had come into the 
 possession of the defendants in the ordinary course of traffic, and was 
 (according to the ordinary arrangements between the different railway 
 companies) used b\" the defendants till they could return it. 
 
 Evidence was given that when the carriage was put into the train by 
 the defendants it was to all outward appearance reasonably sufflcie)it 
 for the journey, the tire of the wheel being of proper thickness and 
 apparently of sufficient strength, but that, in fact, there had been an 
 air-bubble in the welding, which rendered the tire much weaker than it 
 appeared ; so that, in fact, it was not reasonably fit for the journey, 
 and that the breakin2; of this tire occasioned the accident. Evidence
 
 LATENT DEFECTS IN HIS VEHICLE. 141 
 
 English Court of Queen's Bench. 
 
 was given that this defect was one which could not be detected by 
 inspection, nor by any of the usual tests, as it would ring to the ham- 
 mer as if perfectly welded ; and that there was no neglect on the part 
 of the defendants or their servants, who took every reasonable precau- 
 tion in examining the carriage. 
 
 My brother Lush left the case to the jury, telling them that if the 
 accident was occasioned by any neglect on the part of the defendants, 
 they should find for the plaintiff, but that if it was occasioned by a 
 latent defect in the wheel, such that no care or skill on the part of 
 the defendants could detect it, the verdict should be for the defend- 
 ants. The jury found for the defendants ; and it is not disputed that, 
 if the direction was right, their verdict was justified by the evidence. 
 
 A rule nisi was obtained for a new trial, on the ground of misdirec- 
 tion, as it was contended that the defendants, as carriers of passengers, 
 were bound at their peril to supply a carriage that really was reasonably 
 fit for the journey, and that it was not enough that they made every 
 reasonable effort to secure that it was so ; in other words, that the obli- 
 gation of the carrier to the passenger was equivalent to a warranty 
 of the reasonable sufficiency of the vehicle he supplies. Cause was 
 shown in the Sittings after Trinity Term, 1866, before my brothers 
 Mellor, Lush, and myself, when the court took time to consider. 
 
 This is a question of very great nicety and importance ; but, after 
 some consideration and doubt, I have come to the conclusion that 
 on the balance of English authority, and I think, upon the whole, in 
 principle and by analogy to other cases, there is a duty on the carrier 
 to the extent that he is bound at his peril to supply a vehicle in fact 
 reasonably sufficient for the purpose, and is responsible for the conse- 
 quences of his failure to do so, though occasioned by a latent defect ; 
 and therefore that the direction was wrong, and that there should be 
 a new trial. I have come to this conclusion with much doubt and hesi- 
 tation ; and as my two brothers are of different opinion, I need not say 
 that I am very far from being confident that I am not wrong ; but still 
 I think it best to state the reasons why I differ from them. I quite 
 agree that the carrier of passengers is not, like the carrier of goods, an 
 insurer, who undertakes to carry safely at all events unless prevented 
 by excepted perils. The carrier has not the control of the human 
 beings whom he carries to the same extent as he has the control of 
 goods, and therefore it would be unjust to impose on him the same 
 responsibility for their safe conveyance. In order, therefore, to render 
 the carrier of passengers liable for an accident, it is necessary to allege 
 and prove that the accident arose from some neglect of duty on the
 
 142 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Eeadhead v. Midland Railway Company. 
 
 carrier's part; but if the obligation on tlie part of tiie carrier to provide 
 a vehicle reasonably fit for the journey is absolute, a failure on his part 
 to fulfil that obligation is quite enough to make him liable for all the 
 consequences. And I own I see nothing to diminish the obligation to 
 provide a reasonably safe vehicle, in the fact that it is to be provided 
 for the safety of life and limb and not merely of property. 
 
 The carrier supplies and selects the carriage for the purpose of con- 
 ve3Mng the passenger, who is obliged to trust entirely to the carrier; 
 the passenger having no means of examining the carriage, and no voice 
 in the selection of it. Now, it has been decided that one who contracts 
 to supply articles for a particular purpose, does impliedly warrant that 
 the articles he supplies are fit for that purpose.^ The principle of that 
 case, as I understand it, is that expressed by Maule, J., who says that 
 the defendant, having accepted an order for a rope for a particular pur- 
 pose, which rope he was to select and procure, did undertake to furnish 
 one fit for that purpose, and was therefore liable as on a lireach of his- 
 contract if he furnished one unfit for that purpose, though that unfit- 
 ness arose from a latent defect ; and this principle would seem to apply 
 to the carrier of passengers who supplies a vehicle. On the same prin- 
 ciple, I think, it is that a ship-owner warrants to the person who ships 
 goods that his vessel is seaworth3\ Lord Tenterden. in Abbott on 
 Shipping," states the law thus: "The first duty is to provide a vessel 
 tight and staunch, and furnished with all tackle and apparel necessary 
 for the intended voyage. For if the merchant suffer loss or damage by 
 reason of any insufficiency of these particulars at the outset of the 
 voyage, he will be entitled to a recompense. * * * An insufflcienc3^ 
 in the furniture of the ship cannot easily be unknown to the master or 
 owner, but in the body of the vessel there may be latent defects 
 unknown to both. The French ordinance directs that if the merchant 
 can prove that the vessel, at the time of sailing, was incapable of 
 performing the voyage, the master shall lose his freight and pay the 
 merchant his damages and interest.^ Valin, in his commentary on this 
 article, cites an observation of Weytsin:^ 'That the punishment in 
 this case ought not to be thought too severe, because the master, b}' the 
 nature of the contract of affreightment, is necessarily held to warrant 
 that the ship is good, and perfectly in a condition to perform the vo3'age 
 in question, under the penalty of all expenses, damages, and interest.' 
 And he himself adds that this is so, although before its departure the 
 ship may have been visited, according to the practice in France, and 
 
 1 Brown v. Edgington, 2 Mau. & G. 279, 293. « Oni. de la Marine, liv. iii., tit. 3, art. 12. 
 
 2 5th ed., p. 2iS ; 10th od., by Shee, p. 254. •• Traite des Avaries, 10.
 
 LATENT DEFECTS IN TIIS VEHICLE. 143 
 
 English Court of Queen's Bench. 
 
 reported sufficient; because on the visit the exterior parts only of the 
 vessel are surveyed, so that secret faults cannot be discovered, 'for 
 which by consequence,' says he, 'the owner or master remains always 
 responsible, and this more justly because he cannot be ignorant of the 
 bad state of the ship; but even if he be ignorant, he must still answer, 
 being necessarily bound to furnish a ship good and capable of the 
 voyage.^ " Lord Tenterden then notices the opinion of Pothier,^ that 
 in such a case the owner should not be answerable for damages occa- 
 sioned bj' a defect which they did not nor could know, though he 
 agreed that they should lose their freight; and Lord Tenterden 
 observes in a note that this opinion of Pothier is not quite consistent 
 with his own principles, laid down in the Traite de Louge.^ However 
 this may be in the old French law or the civil law, it is, I think, clear 
 that, according to English law, either there is a breach of warranty, in 
 which case the owner is responsible for all the consequences, or there is 
 not, in which case there is no ground for depriving him of his freight. 
 And I think that there is ample authority, in addition to what I have 
 cited from Abbott on Shipping, for saying that, by English law, such 
 a warranty is implied where the carriage is by water. 
 
 In Lyon v. Mells,^ Lord Ellenborough, in delivering the considered 
 judgment of the court, says: "In every contract for the carriage of 
 goods between a person holding himself forth as the owner of a lighter 
 or vessel ready to carry goods for hire, and the person putting goods on 
 board, or employing his vessel or lighter for that purpose, it is a term 
 of the contract on the part of the carrier or lighterman, implied by law, 
 that his vessel is tight, and fit for the purpose or employment for which 
 he offers and holds it forth to the public ; it is the very foundation and 
 immediate substratum of the contract that it is so. The law presumes 
 a promise to that effect on the part of the carrier, without any actual 
 proof, and every reason of sound policy and public convenience requires 
 that it should be so. The declaration here states such a promise to 
 have been made by the defendant, and it is proved by proving tlie 
 nature of his employment ; or, in other words, the law in such a case, 
 without proof, implies it." 
 
 In Gibson v. Small,* in explaining the reason why, in a voyage policy 
 of insurance, there was an implied condition that the ship was seaworthy, 
 as much when the insurance is on goods as when on the vessel, Parke, 
 B., says: The ship-owner "contracts with every shipper of goods that 
 he will do so " (i.e., make the ship seaworthy). " The shipper of goods 
 
 1 Trait<5 de Charte-partie, num. 30. ' 6 East, 428,437. 
 
 2 Part II., chap. 1, § 4, par. 2. •• 4 II. L. Cas. 404.
 
 144 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Eeadhead v. Midland Eaihvay Company. 
 
 has a right to expect a seaworth}' ship, and may sue the ship-owner if it 
 is not. Hence, the usual course being that the assured can and may 
 secure the seaworthiness of the ship, either directly if he is the owner, 
 or indirectly if he is the shipper, it is by no means unreasonable to 
 imply such a contract in a policy on a ship on a voyage, and so the law 
 most clearly has implied it." It appears from this that this most 
 learned judge thought it clear that the undertaking of the ship-owner to 
 the shipper of goods, as to seaworthiness, is coextensive with the 
 undertaiving of the goods-owner to his insurer. 
 
 I am eertainl}' not aware of any case in which the question has arisen 
 whether there is a similar warranty between a ship-owner and a passen- 
 ger ; but it seems to me that every reason that can be urged in favor of 
 the warranty applies as much to the one case as to the other. The pas- 
 senger trusts to the ship-owner to select a proper ship as much as the 
 shipper of goods does ; and all those circumstances exist which induced 
 Valin (in the passage cited in Abbott on Shipping) to say that the ship- 
 owner, from the nature of his contract, was "necessarily bound to 
 furnish a ship good and sufficient for the voyage ; " or, as Lord Ellen- 
 BOR UGH says in Lyon v. Mells^^ " that his promise to do so is proved 
 by proving the nature of his emplo3aiient. " Indeed, in the very prob- 
 able case of a person shipping merchandise by the same vessel in which 
 he himself takes his passage, it would seem rather extraordinary if the 
 law were to hold that, as far as the goods were concerned, there was an 
 implied undertaking to furnish a seaworthy- ship, but as regarded the 
 personal safety of the passenger there was none. It is true that the 
 carrier of goods is an insurer, except against certain excepted perils, 
 and that the carrier of passengers is not ; but the question whether the 
 carrier of goods is bound at his peril to supply a seaworthy vessel can 
 only arise where the immediate cause of the loss is an excepted peril, 
 or where for some other reason the contract to insure does not apply. 
 
 Assuming, then, that there is such a warranty implied where the 
 carriage is to be by water, is there any difference where the carriage 
 is by land? 
 
 The principle which I understand to be laid down in Brown v. 
 Edgington^ is this, that where one party to a contract engages to 
 select and supply an article for a particular purpose, and the other 
 party has nothing to do with the selection, but relies entirely upon the 
 party who supplies it, it is to be taken as part of the contract implied 
 b}' law, that the supply warrants the reasonable sufficiency of the 
 
 1 5 East, 437, * 2 Man. & G. 279.
 
 LATENT DEFECTS IN HIS VEHICLE. 145 
 
 English Court of Queen's Bench. 
 
 article for that purpose, and I think Lyon v. Mells ^ lays down a very 
 similar principle as generally applicable, though the particular instance 
 was that of a lighterman. If this principle be a general one, it applies 
 equally to the case of the ship-owner supplying a ship, and the carrier 
 by land supplying a vehicle, whether it is supplied for the carriage 
 •of goods or passengers. In Brass v. Maitland ^ this principle was 
 much discussed. I think the effect of the reasoning of the judgment 
 of Lord Campbell and Wig htm an, J., shows that, in their opinion, 
 this is a general principle of law ; whilst the effect of the judg- 
 ment of Crompton, J., is such as to show that he did not think the 
 principle general, and was not inclined to carry it further than the 
 decisions had already gone. My respect for his opinion is very great, 
 and if ever the question whether there is such a general principle of 
 law should come before me in a court of error, I should endeavor to 
 consider it carefully as an open question, without being too much biased 
 by my present impression in favor of it ; but sitting here, in the same 
 court in which that case was decided, I am bound to consider the 
 decision of the majority right, and to act upon it so far as it bears 
 on the present question. 
 
 The authorities on the very point now before us are not numerous. 
 In Israel v. Clark,^ Lord Ellenborough is reported to have said that 
 the carriers of passengers by land " were bound by law to provide a 
 sufficient carriage for the safe conveyance of the public who had occa- 
 sion to travel by them ; at all events, he would expect a clear landworthi- 
 ness in the carriage itself to be established." This seems to show that 
 in his opinion the doctrine which in Lyon v. Melts'^ was laid down as 
 to the persons furnishing lighters for the conveyance of goods, was 
 applicable to tliose furnishing carriages by land for the convej^ance of 
 passengers, and that they were bound at their peril to provide vehicles 
 in fact reasonably sufficient for the purpose. And in Bremner v. Wil- 
 liams,^ Best, C. J., is reported to have ruled the same way. These are, 
 it is true, only nisi prius decisions, and neither reporter has such a 
 character for intelligence and accuracy as to make it at all certain that 
 the facts are correctly stated or that the opinion of the judge was 
 rightly understood. 
 
 On the other hand, in Christie v. Griggs^^ Mansfield, C. J., told the 
 jury that " if the axletree was sound, as far as human eye could dis- 
 cover, the defendant was not liable. There was a difference between a 
 
 > 6 East, 428. « 6 East, 428. 
 
 » 6EI.&B1.470; 2GL. J. (Q. B.)49. » 1 Car. & P. 414. 
 
 • 4 Esp. 259. • 2 Cauip. 81, post, p. 181. 
 
 to
 
 146 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Rearlhead v. Midland Railway Company. 
 
 contract to carry goods and a contract to carry passengers. For the 
 goods the carrier was answerable at all events. But he did not warrant 
 the safety of the passengers. His undertaking as to them went no 
 further than this : that as far as human care and foresight could go, he 
 would provide for their safe conve3'ance. Therefore, if the breaking 
 down of the carriage was purely accidental, the plaintiff had no remedy 
 for the misfortune he had encountered." We may depend on the accu- 
 racy of this reporter. Mansfield, C. J. , here does not very accurately 
 distinguish between the possible view of the case that the misfortune 
 might have arisen though the vehicle was reasonably fit for the journey, 
 and so be purely accidental, and the possible view that the accident, and 
 the circumstances attending it, showed that the coach could not in fact 
 be reasonably fit for the journey ; but, on the whole, I think it must be 
 taken that he thought there was no warranty such as would make the 
 coach proprietor liable for a latent defect in the coach. But this was 
 only an opinion at nisi prius. 
 
 In Sharp v. Grey,^ Tindal, C. J., is stated, in the report in Bingham,^ 
 to have directed the jury to consider whether there had been on the part 
 of the defendant that degree of vigilance which was required by his 
 engagement to carry the plaintiff safely; which leaves it in doubt 
 whether he told the jury that the defendant was bound at his peril to 
 provide a fit vehicle, a failure to fulfil which duty would be properly 
 described in the declaration as negligence, and left it to them to say 
 if it was in fact reasonably fit; or whether he left it to the jury to 
 say whether the defendant had not neglected some reasonably practical 
 means of ascertaining its fitness ; but the counsel, in moving for a new 
 trial, treat it as a direction that the defendant would be responsible 
 though he had conducted his business with all the caution that could 
 be reasonably required; and the judges, in refusing the rule, all appear 
 to have so understood the ruling, and to hold it right. 
 
 I have already said that on the balance of reasoning I am inclined to 
 think that such ought to be the law ; but at present, sitting in a court 
 
 1 9Biiig.457. been laid as negligence in not providing a 
 
 * The case is also reported in 2 Moo. & safe carriage; and the Chief Justice's direc- 
 
 S. 620, with some material differences, and tion to the jury is, " that the defendant was 
 
 la 2 L. J. (C. P.) 45, with so strong a simi- bound to provide n safe conveyance for the 
 
 larity as to amount to identity with the passengers he contracted to carry; and he 
 
 report in 9 Bing. ; the marginal note, state- left it to the jury to say whether or not the 
 
 iiient of facts, as well as the judgments defendant had observed that extreme degree 
 
 of Park and Alderson, JJ., being almost toti- of care and diligence in the examination of 
 
 dem verbis. It is, however, remarkable that his coach which the safety of his passengers 
 
 the judgments of Gaselee and Bosanquet, required that he should observe." The 
 
 JJ., are omitted. In the report in 2 Moo. & judgments also differ considerably from the 
 
 Scott, the cause of action is said to have report in 9 Bingham.
 
 LATENT DEFECTS IN HIS VEHICLE. 147 
 
 English Court of Queen's Bench. 
 
 of coordinate jurisdiction with the Common Pleas, I think it enough 
 that the decision is in point. 
 
 In an American case, Ingalls v. Bills,^ given at length in the editor's 
 note to Story on Bailments,'^ the court, after considering the English 
 cases, came to a conclusion opposite to that which I have come to, 
 expressly stating that they do not agree with the opinion of the Court 
 of Common Pleas in Sharp v. Grey, if it is understood as I think it 
 must be. It will be verj^ fit, if the case at bar is taken into a court of 
 error, that the reasoning of the American court should be carefully and 
 respectfully considered ; and if it appear to the court of error satisfac- 
 tory, they may act upon it, and overrule the case of Sharp v. Grey. 
 But it is clear that we, in the Court of Queen's Bench, cannot treat the 
 American decision as an authority to be placed on the same footing as 
 the decision of the Court of Common Pleas. 
 
 The judgment of this case has been delayed until the argument in the 
 ease of Hando v. London, Chatham, and Dover Railway Company was 
 heard, as it was anticipated that a similar point might arise in that case ; 
 but it was not necessary to decide it.^ 
 
 I think that the Irish case of Burns v. Cork and Bandon Railway 
 Company^ really throws no light upon the point before us. In that 
 case a plea was pleaded which was clearly intended to raise the ver^^ 
 
 1 9 Mete. 1, ante, p. 112. whom tlie cause was tried, directed a ver- 
 
 2 § 592 (Tth ed.),p.565. diet for the defendants; and a rnle having 
 8 Hando v. London etc. R. Co. (Q. B.,May been obtained, pursuant to leave reserved, 
 
 6, 1867) was an action by a wife to recover to enter it for the plaintiff, Pollock, Q. C, 
 damages for the death of her husband. The showed cause, and maintained, first, that 
 deceased was killed by an accident which as there was no negligence shown, but the 
 occurred while he was travelling in a car- contrary, the defendants were not liable: 
 riage on the defendants' railway. The en- for that carriers of passengers did not war- 
 gine and train ran off the rails, and after rant the safety of their passengers ; and he 
 the accident a spring of the engine was cited most of the cases noticed in the judg- 
 found broken, the fracture being quite fresh. ments in the principal case; secondly, that 
 Unless this breaking caused the engine to even if the defendants would have been 
 leave the rails, there was no evidence of the liable had the deceased been an ordinary 
 cause of the accident. The engine had been passenger, the relation of master and ser- 
 carefully examined before starting. At the vant existed between him and the defend- 
 time of the accident the deceased was a ants, and the injury occurred in the ordinary 
 workman at ga^-works which the defend- course of his duty. Powell, Q. C, and Pren- 
 ants were empowered by act of Parliament tice.Q. C, in support of the rule, were heard 
 to keep up for their own use, and they had on the latter point only. The court (Cock- 
 works at Battersea and Dover. The de- burn, C. J., Blackburn, Mellor, and Lush, 
 ceased was in the regular employ of the JJ.) were clearly of opinion that the case 
 defendants, and it was i)art of his ordinary was not distinguishable from Morgan r.Vale 
 
 duty to g I from one set of works to the other 
 as occasion required, about once a fortnight 
 He travelled by the defendants' railway free 
 and received one shilling for his extra ex 
 penses. He was so travelling on the occa 
 sion of his death. Coekburn, C. J., before 
 
 of Neath R. Co., L. R. 1 Q. B. 149; Feltham 
 V. England, L. R. 2 Q. B. 33; and Tunney v. 
 Midland R. Co., L. R. 1 C. P. 291, and dis- 
 charged the rule. 
 
 * Irish Rep. 13 C. L. CN. 8.) B43.
 
 148 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 point before us, and which I own I should myself have thought did 
 raise it. The Irish Court of Exchequer, in giving judgment against 
 the plea, say that if there is a warranty, the plea was clearly bad ; and 
 that even if there was only a duty to take every care, the plea did not 
 sufficiently show the fulfilment of that duty, and was therefore bad. 
 Probably the court were not agreed on the question, and intended to 
 avoid expressing any opinion on it; though I should rather conjecture, 
 from the language used, that the learned judge who wrote the judg- 
 ment inclined to the opinion that there was a warranty. 
 
 I have only to add that I do not think that the duty to suppl3^ a sea- 
 worthy ship or a sufficient vehicle by land is equivalent to a duty to 
 provide one perfect, and such as never can, witliout some extraordinary 
 peril, break down, which would have the effect of making the carrier an 
 insurer against all losses arising from any failure in the vehicle which 
 cannot be shown to arise from some unusual accident. 
 
 I had occasion, in the case of Burges v. Wickham,^ to consider what 
 was the meaning of the term "seaworthy," as applied to a ship ; and 
 I see no reason to change the opinion which I then expressed, that it, 
 meant no more than that degree of fitness which it would be usual and 
 prudent to require at the commencement of the adventure ; and, apply- 
 ing a similar principle to a land journey, I agree with what I understand 
 to have been the direction of Erle, C. J., in Ford v. London and 
 South- Western Railway Company ^"^ that the railway company are not 
 bound to have a carriage made in the best of all possible ways, but 
 sufficiently fulfilled their duty by providing a carriage such as was found 
 in practical use to be sufficient. In other words, I understand the 
 obligation to be to furnish, not a perfect vehicle, but one reasonably 
 sufficient. But in the present case the carriage was not such as to be 
 reasonably sufficient. Had the parties who sent it out known of the 
 existence of this defect in the tire, there would have been strong- 
 ground for accusing them of manslaughter if death had ensued. They 
 did not know it, and could not discover it until the tire broke ; and 
 Ihey are therefore free from all moral blame or criminal responsibility. 
 The question, therefore, is distinctly raised, whether the obligation of 
 the carrier of passengers to the passenger is merely to take every pre- 
 caution to procure a vehicle reasonably sufficient for the service, whether 
 by sea or by land, in which case the direction was right ; or whether it 
 is. as I think, an absolute obligation, at his peril, to supply one, or be 
 responsible for any damage resulting from a defect. 
 
 » 8 Best & S. 6G9, 693 ; 33 L. J. (Q. B.) 17, 26. « 2 Fost. & Fin. 730.
 
 LATENT DEFECTS IN HIS VEHICLE. 149 
 
 Euglisli Court of Exchequer Chamber. 
 
 Taking the view of the law which I do, I think the rule for a new 
 trial ought to be made absolute ; but the majority of the court being of 
 a different opinion, it must be discharged. 
 
 Rule discharged. 
 
 Against this judgment an appeal was taken to the Exchequer 
 Cliamber, where, after the case had been again argued, Maj- 10, 1869, 
 the judgment of the court (Kelly, C. B. ; Byles, Keating, and M. 
 Smith, JJ. ; Channell and Bramwell, BB.) was delivered by — 
 
 Montague Smith, J. — In this case the plaintiff, a passenger for hire 
 on the defendants' railway, suffered an injury in consequence of the 
 carriage in which he travelled getting off the line and upsetting. The 
 accident was caused b}'^ the breaking of the tire of one of the wheels 
 of the carriage, owing to "a latent defect in the tire, which was not 
 attributable to any fault on the part of the manufacturer, and could not 
 be detected previously to the breaking." 
 
 Does an action lie against the company under these circumstances? 
 
 This question involves the consideration of the true nature of the 
 contract made between a passenger and a general carrier of passengers 
 for hire. It is obvious that for the plaintiff, on this state of facts, to 
 succeed in this action, he must establish either that there is a warranty 
 by way of insurance on the part of the carrier to convey the passenger 
 safely to his journey's end, or, as the learned counsel mainly insisted, a 
 warranty that the carriage in which he travels shall be in all respects 
 perfect for its purpose, — that is to say, free from all defects likely to 
 cause peril, although those defects were such that no skill, care, or fore- 
 sight could have detected their existence. 
 
 We are of opinion, after consideration of the authorities, that there 
 is no such contract, either of general or limited warranty and insurance, 
 entered into by the carrier of passengers, and that the contract of such 
 a carrier, and the obligation undertaken by him, are to take due care 
 (including in that terra the use of skill and foresight) to carry a passen- 
 ger safely. It of course follows that the absence of such care — in 
 other words, negligence — \v.)!ild alone be a breach of this contract; 
 and as the facts of this case do not disclose such a breach, and on tin* 
 contrary negative an}' want of skill, care, or foresight, we think the 
 plaintiff has failed to sustain his action, and that the judgment of the 
 court below, in favor of the defendant ought to be affirmed. 
 
 The law of England has, from the earliest times, established^ broad 
 distinction between the liability of common carriers of goods and of 
 passengers. Indeed, the responsibility of tlie carrier to redeliver the
 
 150 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 goods in a sound state can attach only in tlie case of goods. This 
 responsibilit}^ (like the analogous one of innkeepers) has been so long 
 fixed, and is so universally known, that carriers .of goods undertake to 
 carry on contracts well understood to comprehend this implied liability. 
 If it had not been the custom of the realm, or the common law declared 
 long ago, that carriers of goods should be so liable, it would not have 
 been competent for the judges in the present day to have imported such 
 a liability into their contracts on reasons of supposed convenience. 
 But this is, as it seems to us, what we are asked by the plaintiffs to do 
 in the case of carriers of passengers. 
 
 The liability of the common carrier of goods attached upon a pai- 
 ticular bailment of the goods to him in his capacitj' of common carrier, 
 and the rules which govern the rights of bailors or bailees of things, are 
 of course applicable only to things capable of bailment. The law, and 
 the reasons for it, in the case of bailments to carriers are found in the 
 great judgment of Holt, C. J., in Coggs v. Bei-nard,^ and are thus 
 stated: "As to the fifth sort of bailment, viz., a delivery to carry or 
 otherwise manage for a reward to be paid to one that exercises a public 
 employment or a delivery to a private person : Firsts If it be to a person 
 of the first sort, and he is to have a reward, he is bound to answer 
 for the goods at all events ; and this is the case of the common carrier, 
 common hoyman, master of a ship, etc., which case of a master of a 
 ship was first adjudged ^ in the case of Morse v. Slue.^ The law charges 
 this person thus intrusted to carry goods against all events but acts of 
 God and of the enemies of the king. For though the force be never so 
 great, as if an irresistible multitude of people should rob him, neverthe- 
 less he is chai'geable. And this is a politic establishment contrived b^^ the 
 policy of the law for the safety of all persons, the necessit}' of whose 
 affairs obhge them to trust these sort of persons, that the}^ may be safe 
 in their ways of dealing ; for else these carriers might have an oppor- 
 tunitj' of undoing all persons that had any dealings with them, by com- 
 bining with thieves, etc., and yet doing it in such a clandestine manner 
 as would not be possible to be discovered. And ttiis is the reason the 
 law is founded upon in that point." The same law is found in numerous 
 text-books (some of which are referred to in the judgments of mj- 
 brothers Mellor and Lush in their judgments below), ^ and has been 
 acted on for centuries in the case of carriers of goods. 
 
 The court is now asked to declare the same law to be applicable to 
 contracts to carry passengers. The learned counsel for the plaintiff 
 
 1 1 Smith's Ld. Gas. (5tli ed.) 171. « Sir T Raym 220 ; 1 Vent. 190, 23S. 
 
 « 26 Car. 2. » L R. 3 Q. B. 416, 421.
 
 LATENT DEFECTS IN HIS VEHICLE. 151 
 
 English Court of Exchequer Chamber. 
 
 felt the diflBcuIty of the attempt to apply the entire liability of the car- 
 rier of goods to the carrier of passengers, but he contended for and 
 mainly relied on the proposition that there was at least a warranty that 
 the carriage in which the passenger travelled was roadworthy, and that 
 the liability of the carriers of goods in this respect ought to be imported 
 into the contract with the passenger. 
 
 But, first, it is extremely doubtful whether such warranty can be 
 predicated to exist in the contract of a common carrier of goods. His 
 obhgation is to carry and redeliver the goods in safety, whatever happens. 
 In the words of Lord Holt, " he is bound to answer for the goods at all 
 events." Again, " The law charges this person thus intrusted to carry 
 goods against all events but acts of God and of the enemies of the 
 king." And tliis broad obligation renders it unnecessary to import 
 into the contract a special warranty of the roadworthiness of the vehicle ; 
 for if the goods are safely carried and redelivered, it would be imma- 
 terial whether the carriage was roadworthy or not ; and if the goods are 
 lost or damaged, the carrier is liable on his broad obligation to be 
 answerable "at all events," and it is unnecessary to inquire how that 
 loss or damage arose. 
 
 But, however that may be, it is difficult to see upon what principle 
 the contract of the carrier of goods, which on the h3^pothesis does not 
 apply inits entirety to carriers of passengers, is to be dissected, and a 
 particular part of it severed and attached to what, on the hypothesis, is 
 another and different contract. It was contended that the reason which 
 made it the policy of the law to impose the wider obligation on the car- 
 riers of goods applied with equal force to impose the limited warranty 
 of the soundness of the carriage in favor of the passenger. The reason 
 suggested was, as we understood it, that a passenger, when placed in a 
 carriage, was as helpless as a bale of goods, and therefore entitled to 
 have for his personal safety a warranty that the carriage was sound : 
 but this is not the reason, or any thing like the i-eason, given by Lord 
 Holt for the liability of the carrier of goods. The argument founded 
 on this reason, however, would obviously carry the liability of the car- 
 rier far bej-^ond the limited warranty of the roadworthiness of the 
 carriage in which the passenger happened to travel. His safety is no 
 doubt dependent on the soundness of the carriage in which he travels ; 
 but in the case of a passenger on a railway it is no less dependent on 
 the roadworthiness of the other carriages in the same train and of the 
 engine drawing them, on the soundness of the rails, of the points, of 
 the signals, of the masonry, in fact of all the different parts of the 
 system employed and used in his transport, and he is equally helpless
 
 152 LIABILITY OF THE CARRIER FOR NEGLIGENCE - 
 
 Readhead v. Midland Railway Company. 
 
 as regards them all. If, then, there is force in the above reason, why 
 stop short at the carriage in which the passenger happens to travel? It 
 surel}' has equal force as to all these things, and, if so, it must follow as a 
 consequence of the argument that there is a warranty that all these things^ 
 should be and remain absolutely sound and free from defects. This, 
 which appears to be the necessary consequence of the argument, although 
 Mr. Manisty disclaimed the desire to press it so far, tries the value of 
 it. But surely, if the law really be as it is now contended to be, it 
 would have been so declared long ago. No actions have been more 
 frequent of late years than those against railway companies in respect 
 of injuries sustained by passengers. Some of these injuries have been 
 caused by accidents arising from defects or unsoundness in the rolling- 
 stock, others from defects in the permanent works. Long inquiries 
 have taken place as to the causes of these defects, and whether they 
 were due to want of care and skill, and these inquiries would have been 
 altogether immaterial if warranties of the kind now contended for formed 
 part of the contract. 
 
 An obligation to use all due and proper care is founded on reasons 
 obvious to all, but to impose on the carrier the burden of a warrant}' 
 that every thing he necessarily uses is absolutely free from defects likel}^ 
 to cause peril, when, from the nature of things, defects must exist which 
 no skill can detect, and the effects of which no care or foresight can 
 avert, would be to compel a man, by implication of law and not by his 
 own will, to promise the performance of an impossible thing, and would 
 be directl}'^ opposed to the maxims of law. Lex non cogit ad impossihilia, 
 Nemo tenetur ad impossibilia. 
 
 If the principle of implying a warrant}' is to prevail in the present 
 case, there seems to be no good reason why it should not be equally 
 applied to a variety of other cases, — as, for instance, to the managers of 
 theaters and other places of pubHc resort, who provide seats or other 
 accommodation for the public. Why are they not to be equally held to 
 insure by implied warranty the soundness of the structures to which 
 they invite the pubUc ? But we apprehend it to be clear that such per- 
 sons do no more than undertake to use due care that their buildings 
 shall be in a fit state. Thus, a staircase in the Polytechnic Institution 
 fell and injured several persons attending a public exhibition there. 
 Two actions were brought by separate plaintiffs who had paid money 
 for the use of this staircase. The first was tried before Wightman, J., 
 the second before Eele, C. J. No one seems to have supposed there 
 was any warranty of the soundness of the staircase ; yet the persons 
 using it were as helpless to detect or prevent the accident as the travel
 
 LATENT DEFECTS IN HIS VEHICLE. 153 
 
 English Court of Exchequer Chamber. 
 
 ler. Both learned judges put the liabiUty entirely on the question 
 whether there was the want of due care in maintaining the staircase, 
 and Erle, C. J., told the jury the defendants would not be liable for 
 latent defects. ^ So, in stating the liability of a canal company, who 
 made the canal for profit and allowed the public to use the canal on 
 payment of tolls, Tindal, C. J., in delivering the judgment of the 
 Court of Exchequer Chamber, says: "■The common law in such a case 
 imposes a duty upon the proprietors, not, perhaps, to repair the canal, 
 or absolutely to free it from obstructions, but to take reasonable care, 
 so long as they keep it open for the public use of all who may choose 
 to navigate it, that they may navigate without danger to their lives or 
 property. ' ' ^ 
 
 The liability in that case was not put in any degree upon a warranty 
 that the canal should be free from perilous defects, but upon the 
 rational obligation to use due care that it should be so. 
 
 The common law with regard to carriers of goods, and innkeepers, 
 stands, as I have said, on its own special grounds. But it has been 
 found so stringent, not to say unjust, in the liabilities it imposed on 
 persons carrying on those trades, that the legislature has found it 
 necessary in both cases to modify its stringency. 
 
 It will now be necessary to examine the leading authorities cited 
 during the argument. 
 
 The counsel for the plaintiff, in the first place, referred to some of 
 the cases in which it has been held that in contracts for the supply of 
 goods for a particular purpose there is an implied warranty that the 
 goods supplied shall be reasonably fit for that purpose. Bigge v. Par- 
 kinson 3 is a case of that class. But the agreement to sell and supply 
 goods for a price which may be assumed to represent their value is a 
 contract of a different nature from a contract to carry, and has essen- 
 tially different incidents attaching to it. Indeed, the learned counsel 
 did not cite these cases as directly governing the present. Even in the 
 cases of contracts to supply goods, it may be a question, on which it is 
 not now necessary to express an opinion, how far and to what extent 
 the vendor would be liable to the vendee in the case of a latent defect 
 of the kind existing in the present case, which no skill or care could 
 prevent or detect ; that is to say, where an article is supplied which 
 has been manufactured and tested in the best and most careful manner, 
 so as to be turned out as perfect as in the nature of things it could be. 
 
 1 Brazier v. Polytechnic Institution, 1 " Lancaster Oanal Co. v. Parnaby, 11 Ad. 
 
 Fost. & Fin. 507; Pike v. Polyteclinic Insti- &E. 243. 
 tution, 1 Fost. & Fin. 712. « 7 Hurl. & N. 955; 31 L. J. (Exch.) 301.
 
 154 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 It is clear that if the manufacturer is Uable for such an inevitable and 
 undiscoverable defect, he can never sell what he makes without the risk 
 of an action attaching itself to every contract he enters into, — without, 
 in fact, becoming an insurer, unless he expressly limits his liability. 
 
 In cases of express warranties the compact of the parties is to be 
 gathered from the words they use in making them. When warranties 
 are expressly made, the pai'ties themselves may guard against excessive 
 liability by any exceptions they please ; and in those implied by law, the 
 law itself must take care to keep them within the boundaries of reason 
 and justice, so as not to impose impracticable obligations. 
 
 It is now proposed to consider the authorities relied on as having a 
 direct bearing on the question before us. The case which the plaintiff's 
 counsel relied on as the strongest in his favor is Sharp v. Grey.^ But 
 that case, when examined, furnishes no sufficient authority for the 
 extensive liability which the plaintiff seeks to impose on the defendants. 
 There the plaintiff was injured by an accident caused by the breaking 
 of the axletree of a stage-coach. The defect might have been discov- 
 ered if a certain examination had taken place, and it was made a 
 question of fact at the trial whether it would have been prudent or not 
 to make that examination. Tindal, C. J. (at p. 458), who tried the 
 cause, is reported to have directed the jury to consider " whether there 
 had been on the part of the defendant that degree of vigilance which 
 was required by his engagement to carry the plaintiff safely." Now, if 
 the learned Chief Justice had supposed there was an absolute warranty 
 of roadworthiness, this direction could not have been given, as it would 
 have been an utterly immaterial consideration. The juiy found, on this 
 jiirection, for the plaintiff ; and a motion was made in the absence of 
 Tindal, C. J., for a new trial. Two of the learned judges (Gaselee 
 and BosANQUET, JJ. ), in refusing the rule, are certainly reported to 
 have used expressions which seem to indicate that they thought the 
 defendant bound to supply a roadworthy vehicle. Park, J., uses lan- 
 guage which, as reported, is ambiguous. But the judgment of Alder- 
 SON, J., is distinctly opposed to the notion of a warranty against latent 
 and undiscoverable defects. He says: "A coach proprietor is liable 
 for all defects in his vehicle which can be seen at the time of construc- 
 tion, as well as for such as may exist afterwards and be discovered by 
 investigation." We have referred somewhat fully to this case, because 
 it was put forward as the strongest authority in support of the plaintiff's 
 claim which can be found in the English courts, and because it was 
 
 1 9 Biug. 457.
 
 LATENT DEFECTS IN HIS VEHICLE. 155 
 
 English Court of Exchequer Chamber. 
 
 relied on by the judges of the Court of Appeals in New York in a 
 decision which will be afterwards referred to. But the case, when 
 examined, furnishes no sufficient authority for the unlimited warranty 
 now contended for. The facts do not raise the point for decision, 
 and the authority of Tindal, C. J., and Alderson, J., is against the 
 plaintiff. 
 
 The direction of Best, C. J., in Bremner v. Williams'^ was not neces- 
 sary to the decision of the case. The ruling of Lord Ellenborough in 
 Israel v. Clark^ was also relied on. Of these two last authorities 
 Blackburn, J., in his judgment below,^ said: "These are, it is true, 
 only nisi prius decisions, and neither reporter has such a character for 
 intelligence and accuracy as to make it at all certain that the facts are 
 correctly stated or that the opinion of the judge was rightly under- 
 stood." We find also that Best, C. J., makes observations in the 
 opposite sense in the case of Crofts v. Waterliouse.^ These are really 
 the only English authorities which afford any support at all to the plain- 
 tiff's view, for the interpretation reported to have been given by Cress- 
 well, J., in Benett v. Peninsular and Oriental Steam Packet Company,^ 
 of the case of Sharp v. Grey, was only an observation made during an 
 argument, when it was cited as incidentally bearing on the question 
 then before the court, and cannot be relied on as an authority. 
 
 On the other hand, there is not only the plain distinction between the 
 liabilities of carriers of goods and of passengers, constantly referred 
 to by text- writers and judges as well known and settled law, but numer- 
 ous cases have been decided on grounds entirely at variance with the 
 supposition that there existed contemporaneously with them the liability 
 by way of warranty. In Aston v. Heaven,^ which was the case of an 
 injury to a passenger, Eyre, C. J., after carefully pointing out the law 
 as to the liability of carriers of goods to make good all losses except 
 those happening from the act of God or the king's enemies, and the 
 reason for it, saj^s: "I am of opinion the cases of losses of goods by 
 carriers and the present are totally unlike." Again, "There is no 
 such rule in the case of the carriage of persons. This action stands on 
 the ground of negligence alone." In Christie v. Griggs,"^ Sir James 
 Mansfield says: "There is a difference between a contract to carry 
 goods and a contract to carry passengers. For the goods the carrier 
 was liaV)le at all events. But he did not warrant the safety of the pas- 
 sengers. His undertaking as to them went no further than this, that as 
 
 1 1 Car. & p. 414, 416. •• 3 King. 319. 
 
 « 4 Esp. 25.1. 6 6 C. n. 782. 
 
 « L. K. 2 y. K. 437. • 2 Esj). 533. ' 2 Camp. 79, post, p. 181.
 
 156 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Eeadhead v. Midland Kailway Company. 
 
 far as human care and foresight could go, he would provide for their 
 safe conveyance." In Crofts v. Waterhouse, the observations attrib- 
 utable to Best, C. J., clearly show that he did not think there was any 
 warranty on the part of the carrier of passengers ; and Park, J. , in the 
 same case, says: "A carrier of goods is liable at all events. ♦ * * 
 A carrier of passengers is only liable for negligence." 
 
 But besides the observations of individual judges to show what has 
 hitherto been understood to be the law, there is the series of important 
 cases involving costly and protracted trials, in which, by common con- 
 sent, the liability of carriers of passengers has been based upon the 
 duty to take due care, and not upon a warranty. 
 
 In Grote v. Chester and Holyhead Railway Company,'^ where the acci- 
 dent arose from the breaking down of one of the bridges of the railway, 
 the case turned on what would or would not be negligence for which the 
 company were answerable. Parke, B., said:^ "It seems to me the 
 company would still be liable for the accident unless he (the engineer) 
 also used due and reasonable care and employed proper materials in the 
 work." There is no trace in the report that it ever occurred to the 
 court to suppose there was any warranty of the safety of the bridge. 
 
 In a case tried before Erle, C. J., Ford v. London and South-Western 
 Railway Company,'^ the plaintiff was injured by the tender of the train 
 being thrown off the line, and one of the causes was alleged to be the 
 defective tire of one of the wheels of the tender. Erle, C. J., in his 
 direction told the jury: "The action is grounded on neghgence. Neg- 
 ligence is not to be defined, because it involves some inquiry as to the 
 degree of care required, and that is the degree which the jury think is 
 reasonable to be required from the parties, considering all the circum- 
 stances. The railway company is bound to take reasonable care to use 
 the best precautions in known practical use for securing the safety of 
 their passengers." There the defect was in the tire of a wheel of the 
 tender of the train by which the plaintiff travelled. And no suggestion 
 that a warranty of its soundness existed was made throughout the case. 
 
 But a case still more directly bearing upon the present point was tried 
 before Cockburn, C. J.^ There the accident happened in consequence of 
 the breaking of the tire of the rear wheel of the engine. The tire broke 
 from a latent flaw in the welding. The trial lasted six days ; and the 
 questions mainly were, whether the flaw was not visible, and whether b}' 
 the exercise of care it might not have been detected. The Lord Chief 
 Justice commences a full direction to the jury by saying: ^ "The ques- 
 
 1 2 Exch. 251. < stokes v. Eastern Counties K. Co., 2 Fost. 
 
 « Id. 254. & Fin. G'»l. 
 
 • S Fost. & Fin. 730, 732. , <> 2 Fost. & Fin. 693.
 
 LATENT DEFECTS IN HIS VEHICLE. 157 
 
 English Court of Exchequer Chamber. 
 
 tion is, whether the breaking of the tire resulted from any negligence 
 in the defendants, or their servants, for which they are responsible." 
 The latent defect in the tire was admitted to be the cause of the acci- 
 dent; but the jury having found, in answer to specific questions, that 
 there was no evidence that the tire was negHgently welded, and that 
 the defect had not become visible, and having in other respects nega- 
 tived negligence, the verdict was entered for the defendants. The facts 
 of that case appear to be exactl}' like the present, except that in this 
 case the defective tire was in the wheel of the carriage, and there in 
 the wheel of the engine. But, for the reasons already given, it can 
 never be that a warranty can exist as to the carriage, but not as to the 
 engine drawing it. Thus, then, it is plain a trial of six days took place 
 on issues which were utterl}' immaterial if a warranty ought to have been 
 implied ; and there the learned Chief Justice and the parties themselves 
 seem to have been utterly unconscious of the contract which was really 
 existing if the plaintiff in this case is right; for the warranty, as an 
 obligation implied by law, must have existed at the time of these trials 
 if it exists now, and surely it is strong to show that no such rule does 
 form part of a common law that it was not then recognized and de- 
 clared. 
 
 The learned counsel for the plaintiff insisted that a carrier by sea is 
 bound to have his ship seaworthy. Undoubtedly the carrier of goods 
 by sea, like the carrier of goods by land, is bound to carry safely, and 
 is responsible for all losses, however caused, whether by the unsea- 
 worthiness of the ship or otherwise ; and it does not appear to be 
 material to inquire, when he is subject to this large obligation, whether 
 he is also subject to a less one. In the case of Lyon v. Mells^^ it was 
 no doubt stated by the court that the carrier of goods is bound to have 
 a seaworthy ship, but this only as part of his general liability. It is 
 well to observe that Holroyd, who argued for the plaintiff, and Gaselee 
 for the defendant, both state the liability of the carrier in all its breadth, 
 viz., a liability for all losses, however happening, except by the act of 
 God and the king's enemies. This case therefore falls within the 
 class of decisions relating to the liability of the carriers of goods. No 
 case has been found where an absolute warranty of the seaworthiness 
 of the ship in the case of passengers has arisen, and it affords a strong 
 ground for presuming that no such liability exists that in this maritime 
 nation no passenger has ever founded an action on it. 
 
 The case of Burns v. Cork and Bandon Raihvay Company,^ in the 
 Irish Court of Common Pleas, certainly does not support the plaintiff's 
 
 » 6 East, 423. « Irish Rep. 13 C. L. (N. 8.) 543.
 
 158 LIABILITY OF THE CARRIER FOR jSEGLIGENCE. 
 
 Readhead v. Midland Railway Company. 
 
 view of the law. The court say there, the averments in the defendant's 
 plea are all consistent with gross and culpable negligence, and on that 
 ground give judgment for the plaintiff. The judgment plainly shows 
 that the court do not mean to declare that there is an absolute under- 
 taking that the vehicle shall be free from defects. The language is : 
 "Free from defects so far as human care and foresight can provide, 
 and perfectly roadworthy." The court refer with approbation to the 
 language of Sir James Mansfield and Alderson, J., which helps to 
 explain that they were disposed to adopt the views of tliose learned 
 judges, and to place the liability, not on a warranty, but on the obliga- 
 tion to exercise care and foresight. 
 
 It now remains to consider the American decisions on the subject. 
 They have not been uniform. The judgment of Mr. Justice Hubbari> 
 in Ingalls v. Bills,^ cited at length by my brother Mellok in his judg- 
 ment below, 2 is opposed to the notion of a warranty. 
 
 Decisions, however, were cited before us by Mr. Manisty, from the 
 courts of the State of New York, having a contrar}^ tendency, to show 
 us that in that State the law had been declared in favor of annexing a 
 warranty to the contract. The most important of these cases is Alden 
 V. New York Central Raihoay Company ^^ in the Court of Appeals of 
 the State of New York. That was the case of an accident caused by 
 a defect in an axletree, and the reasons given by Gould, J., for the 
 decision are not satisfactory to our minds. The learned judge seems 
 to assume that there was no negligence shown on the part of the com- 
 pany. He cites the case of Sharp v. Grey J in the Court of Common 
 Pleas here, and he interprets that case to determine that the carrier 
 warrants the roadworthiness of his coach. But if the view of the case 
 of Sharp v. Grey taken in the early part of this judgment is correct, 
 the learned judge gave too great weight to it. Gould, J., then, after 
 having given the rule as he supposed it to be laid down in Sharp v. Grey, 
 observes: ^ "And though this may seem a hard rule, it is probably the 
 best that can be laid down, since it is plain and easy of application, and 
 when once established is distinct notice to all parties of their duties 
 and liabilities." With deference to the learned judge, those reasons 
 founded on the convenience of the arrangement are scarcely suflScieni 
 to warrant the introduction of onerous obligations into the contracts 
 of parties ; and the terms in which the judgment is given rather lead to 
 the conclusion that the learned judge was conscious" that he was annex- 
 ing to the contract of the carriers of passengers what had not hitherto 
 
 » 9 Mete. 1, 15 ; ante, p. 123. ^ 26 N. Y. 102. 
 
 « L. R. 2 Q. B. 430. * 9 Bing. 457. ^ 26 N. Y. 104.
 
 LATENT DEFECTS IN HIS VEHICLE. 159 
 
 English Court of Exchequer Chamber. 
 
 been understood to form pnrt of it. The English courts are desirous 
 to treat the American decisions with great respect, but as their authority' 
 here must mainly depend on the reasons on which they are founded, 
 we have felt bound to examine the reasons on which this decision was 
 based, with the result which has been already stated. 
 
 Warranties implied by law are for the most part founded on the pre- 
 sumed intention of the parties, and ought certainly to be founded on 
 reason, and with a just regard to the interests of the party who is 
 supposed to give the warrant}^ as well as of the party to whom it is sup- 
 posed to be given. 
 
 We have already gone fully into the reasons for holding that, in our 
 opinion, the warrant}' contended for in this case is not so founded. 
 
 On the other hand, it seems to be perfectly reasonable and just to 
 hold that the obligation well known to the law, and which because of 
 its reasonableness and accordance with what men perceive to be fair 
 and right has been found applicable to an infinite variety of cases in 
 the business of life, viz., the obligation to take due care, should be 
 attached to this contract. We do not attempt to define, nor is it neces- 
 sar}' to do so, all the liabilities which the obligation to take due care 
 imposes on the carriers of passengers. Nor is it necessary, inasmuch 
 as the case negatives any fault on the part of the manufacturer, to 
 determine to what extent and under what circumstances they may be 
 liable for the want of care on the part of those they employ to con- 
 struct works, or to make or furnish the carriages and other things they 
 use.^ "Due care," however, undoubtedly means, having refei'ence to 
 the nature of the contract to carr}', a high degree of care, and casts on 
 carriers the duty of exercising all vigilance to see that whatever is 
 required for the safe conve37ance of their passengers is in fit and proper 
 order. But the duty to take due care, however widely construed or 
 however rigorously enforced, will not, as the present action seeks to do, 
 subject the defendants to the plain injustice of being compelled by the 
 law to make reparation for a disaster arising from a latent defect in the 
 machinery which they are obliged to use, which no human skill or care 
 could either have prevented or detected. 
 
 In the result, we come to the conclusion that the case of the plaintiff, 
 so far as it relies on authority, fails in precedent ; and so far as it rests 
 on principle, fails in reason. Consequently the judgment of the Court 
 of Queen's Bench in favor of the defendants will be affirmed. 
 
 Judgment affirmed. 
 
 » See, on this point, Grote v. Chester & Holyhead R. Co., 2 Exch. 251.
 
 160 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Hegemaa v. Western Kailroad Corporation. 
 
 3. THE SAME SUBJECT. 
 
 • Hegeman V. Western Railroad Corporation.* 
 
 Court of Appeals of New York, 1855, 
 
 Hon. Addison Gardiner, Chief Judge. 
 
 " Hiram Denio, 1 
 
 " Alexander S. Johnson, > Judges, 
 
 " Charles H. Ruggles, J 
 
 " Gilbert Dean, I^j ^.ro ^^ 
 
 ,, , ^ J, Judges of the Supreme Courtt 
 
 " Augustus C.Hand, , ^ • r ^ ^ ^r. 
 
 .. „ ^ > and ex-offlcio Judges of the 
 
 " Schuyler Crippen, n * ^ a i 
 
 ' Court of Appeals. 
 
 " Richard P. Marvin, J 
 
 1. Degrree of Care required of Carriers of Passengers by Rail. — The degree of pre- 
 
 caution, care, and skill required of a carrier of passengers by stage-coaches, in the 
 preparation and management of the means of conveyance, is not a test of that which 
 is required of those engaged in transporting persons at a high rate of speed, by 
 means of steam-power, upon a railway. 
 
 2. Carrier responsible for the utmost Care and Skill in the Ittanufacture of his 
 
 Vehicles. — Whether a railroad company manufactures the cars and engines used in 
 transporting passengers, or procures them from others, it is responsible that the utmost 
 precaution, care, and skill have been exercised in their construction to render them 
 sufficient and safe. 
 
 8. Illustration — Case in Judg'ment. — Where a passenger in a railroad car was injured 
 by the breaking of one of the axles in consequence of a latent defect which could not 
 be discovered by the most vigilant external examination, it was held that the company 
 was responsible to him for damages, although it purchased the car fi-ora extensive and 
 skilful car-makers, and the axle was procured from a manufacturer of skill and repu- 
 tation, if the defect could have been discovered in the process of manufacturing the 
 axle or car by the application of any test known to men skilled in such business. 
 
 4. Question for Jury. — It is a question for the jury to decide whether, upon the evidence, 
 a railroad company is guilty of negligence in not ascertaining the utility of and adopt- 
 ing an improvement to protect passengers from injuries to which the cars are liable. 
 
 The action was brought to recover damages for injuries to the person 
 of the plaintiff, alleged to have been caused by the negligence of the 
 defendant. The cause was tried at the Rensselaer County Circuit, held 
 by WilUam F. Allen, in October, 1852. The plaintiff proved that the 
 defendant was the proprietor of a railroad extending from Greenbush 
 to Boston ; that in September, 1850, the plaintiff was a passenger on 
 the railroad, having taken the train at Greenbush for Boston ; and when 
 near Hinsdale, Massachusetts, an axle of the car in which he was riding 
 broke, and three of the passengers in the car were killed and the plaintiff 
 
 • Reported, 13 N. T. 9.
 
 LATENT DEFKCTS IN HIS VEHICLE. lt)l 
 
 Court of Appeals of New York. 
 
 was seriously and permanently injured. Tlie plaintiff rested his case 
 on proving the accident and the injury to him. 
 
 On the part of the defendant it was proved that the track of the rail- 
 road was in good order, and that the train was manned by a competent 
 and skilful conductor, engineer, and brakemen ; that at the time of the 
 accident the train was going at the rate of from twenty-five to thirty 
 miles an hour, being the ordinary speed of passenger-trains ; and when 
 the accident occurred the employees of the defendant were at their 
 appropriate places, and the train was stopped as soon as possible after 
 the axle broke. The conductor who was in charge of the train at the 
 time, testified that the car which broke had been run upon the road 
 about sixteen months ; that it was new when it came into his train ; that 
 it was built at Springfield by the Springfield Car and Engine Company ; 
 that it was an excellent car and was used only during the summer 
 months, as they did not wish to deface it by putting stoves in it. 
 Another witness testified that he had been in the employ of the defend- 
 ant thirteen years, and was at the time of the trial ; that during the first 
 nine years he had charge of the machinery and the running of trains, 
 and during the last four years he was superintendent of the defendant's 
 road ; that the car in question was ordered by one Barnes, his prede- 
 cessor, in January, 1848, and was delivered to the defendant the last of 
 June in that year; that it was a part of the witness's business to exam- 
 ine the car, and that he did so before it was accepted by the company ; 
 that he saw the car repeatedly while it was being built, and examined it 
 thoroughly before it was used upon the road, and that the workmanship 
 and materials were of the best quality ; that he did not know of what 
 quality of iron the axles were made, but that the contract with the 
 Springfield Car and Engine Company was that they should be of the 
 best of Ames's axles, and of Salisbury iron ; that at the time this car 
 was constructed he was familiar with the cars used on the principal 
 railroads in New England, and that the size and form of this axle were 
 the same as those in use on other roads ; that Ames's axles were among 
 the best in New England, and that Salisbury iron was considered the 
 best in the country ; that the car had been run about sixteen months, 
 and lajd up during two winters, and that it was safe to run axles that 
 length of time ; that the company had persons in its employ at Green- 
 bush, Springfield, and Boston whose duty it was to examine each pas- 
 senger-car carefully before the starting of each train ; that at the time 
 of this accident one Stowell was thus employed at Springfield, and one 
 Crandall at Greenliush, and that they were competent and careful men 
 for the business in which they were t'iiii)l()yed ; that the defendant's 
 
 11
 
 162 LIABILITY or THE CARRIER FOR NEGLIGENCE. 
 
 Hegeman v. Western Railroad Corporation. 
 
 road had been in operation since 1839, and that but one axle had broken 
 under a passenger-car prior to 1850. This witness further testified 
 that he was present when the broken axle in question was taken from 
 under the car, and that he then examined it ; that it was broken about 
 eleven inches inside of the wheel and about sixteen inches from the 
 centre of the axle, and that he saw nothing indicating that there had 
 been any external defect in the axle, and that he thought the iron was 
 of the best quality ; that one of the other axles of the broken car was 
 bent nearly into the form of an S, and another of them was bent a 
 little ; that portions of the broken axle were tested after the accident, 
 to try the quality and strength of the iron, by the witness, and other 
 persons whom he named. On his cross-examination, he testified that the 
 defendant was not in the habit of applying any tests to axles used in 
 constructing its cars ; that they were accustomed to examine for flaws, 
 but that they did not separate the axles from the trucks for the pur- 
 pose of making the examination, and they condemned them for the 
 least flaw discovered ; that there was an article called a safety-beam 
 attached to cars, and that it was intended to hold the wheel and axle in 
 its place in case the latter should break ; that the cost of the safety- 
 beam was $75 per car, and that the defendant had none of them in use 
 in 1850; that the defendant commenced using them in 1851; that he, 
 the witness, could not say of his own knowledge that the safety-beam 
 was in use prior to 1850, nor could he state when he first heard of 
 them. On his further direct examination, he testified that he knew of 
 no test to apply to car-axles ; that he never saw a safety-beam in use 
 prior to June, 1851, when they were put on some of the defendant's 
 cars, and that he should have seen them if they had been in use on the 
 New England roads. Stowell and Crandall, the persons named by the 
 last witness, testified, the former, that on the morning of the day of 
 the accident, before the car in question left Springfield for Greenbush, 
 he examined it carefully, particularly its axles and wheels, to see if it 
 was safe and in good condition, and that he discovered no defect or 
 indication of weakness or unsoundness; and the latter, that he made 
 a similar examination of the car at Greenbush, just before it left there 
 on the day of the accident, with the like result. A number of other 
 witnesses were examined on the part of the defendant, who had skill 
 and knowledge as to iron and its manufacture, and in making and 
 operating railroad cars, who testified in substance that the car in ques- 
 tion was built by the Springfield Car and Engine Company ; that the 
 axle which broke was of the usual size and description of axles then in 
 use ; and that it was made of good Salisbury iron, which was and is
 
 LATENT DEFECTS IN HIS VEHICLE. 163 
 
 Court of Appeals of New York. 
 
 considered the best kind of iron for such purposes. They also testified 
 that after the accident the broken axle was examined by them, with a 
 view of ascertaining the quality of the iron, and subjected to the usual 
 tests for determining the strength of iron, and that it proved to be of 
 superior quality and strength. They further testified that upon examin- 
 ing the axle after it was broken, a slight crack was discovered in the 
 iron, at the broken point, about a quarter of an inch deep and one and 
 one-half inches long ; that this kind of crack is peculiar to hammered 
 iron, and is called a "fire-crack," and that there was no way of discov- 
 ering its existence except by bending the axle after it was manufactured ; 
 that this defect in the axle could not be discovered before it was broken, 
 by careful inspection, or by striking it with a hammer, or in any way 
 except by bending it ; that no external defect existed in the axle, which 
 was discoverable. 
 
 The plaintiff, in reply, called several witnesses, who, after objection 
 and exception by the defendant, testified that the safety-beam was 
 invented many years prior to 1850 ; that during several years previous 
 to 1850 it was in use on some of the railroads in the State of New 
 York, in New Jersey, and other sections of the country ; but that it 
 was not in use on the New England roads prior to 1851, and that it 
 was not generally adopted and put in use on railroads until 1851. The 
 plaintiff also gave evidence in reply, tending to show that some persons 
 engaged in manufacturing car-axles and cars were accustomed to bend 
 the iron of which the axles were made, and the axles after they were ■ 
 manufactured and before they were used in constructing the car, to 
 discover fire-cracks. There was no evidence that the iron of which 
 the axle in question was made, or the axle itself, was subjected to this 
 test. 
 
 At the close of the evidence, the counsel for the defendant requested 
 the court to charge the jury that if the defendant exercised all the 
 care and diligence which it could reasonably exercise in providing a safe 
 track and a safe engine and cars, and properly supplied its train with 
 a suitable number of competent and faithful men to take chaige of the 
 train, and those men managed the train in a careful and skilful manner, 
 the defendant is not liable. The court did so charge. 
 
 The counsel for the defendant also asked the court to charge that 
 the defendant was only bound to have its cars constructed in the manner 
 then commonly in use, and then deemed sufficient and safe ; the fact 
 that it had not adopted the safety-beam, or any otlier invention, new or 
 old, which was not then in use or deemed necessary by careful persons
 
 1G4 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Hegeman v. Western Railroad Corporation. 
 
 in the same pursuits in the defendant's locality, is not evidence of hegli- 
 gence. The court declined so to charge ; but, in response ia this 
 request, did charge, in substance, that the omission to adopt the safety- 
 beam was not, j^er se, necessarily evidence of negligence, but that the 
 question of negligence was for the jui-y, and did not depend upon what 
 others deemed necessary, but what the jury should believe the defend- 
 ant had reason to suppose, and ought, under the circumstances proved, 
 to have linown, was necessary to the safety of passengers ; that the 
 usual mode of constructing cars in the defendant's locality was proper 
 to be considered by the jury with the other circumstances, but was 
 not necessarily controlling. To this refusal of the court to charge 
 as requested, and to the charge as given, the counsel for the defendant 
 excepted. 
 
 The counsel for the defendant also asked the court to charge that, 
 in respect to the breaking which is complained of, the defendant 
 cannot be held guilty of negligence if it purchased the axle from manu- 
 facturers having a high character for the excellence and safety of the 
 axles manufactured and sold by them, and the defendant used such 
 care and skill in searching for defects as is characteristic of cautious 
 persons engaged in the same pursuit, even though defects did exist 
 such as caused the breaking by which the plaintiff was injured, provided 
 such defects could not be discovered on such examination. The court 
 declined so to cliarge, but instructed the jury that the defendant was 
 responsible for an}' defects which wei'e known to the manufacturer, or 
 which might have been discovered by him upon a vigilant and careful 
 examination of the axle, or which, after delivery, might have been dis- 
 covered upon a like examination b}' a competent person ; that the repu- 
 tation of the manufacturer should be taken into consideration with the 
 other circumstances, but would not alone absolve the defendant from 
 responsibilit}'. To this refusal to charge as requested, and to the charge 
 as given, the defendant's counsel excepted. 
 
 The counsel for the defendant requested the court to instruct the 
 jury that the defendant, under the circumstances of this case, was not 
 liable for any defect which existed in the axle, if such defect was not 
 discoverable after the purchase of the car and axle, upon such exami- 
 nations as are characteristic of cautious persons engaged in the same 
 pursuit as the defendant. The court declined to do so, but charged the 
 jury that, as to the materials of which the axle was made, if they were 
 not of a proper quality, or wrought in a proper manner, and the defects 
 were of that character that they could have been discovered upon a
 
 LATENT DEFECTS IN HIS VEHICLE. 165 
 
 Court of Appeals of New York. 
 
 vigilant examination by a person of competent skill, either at the time 
 of the construction or afterwards, then the defendant was responsible 
 for the consequences ; and the counsel for the defendant excepted. 
 
 The defendant's counsel also asked the court to charge the jury that 
 in making the careful examinations required by law, before the train 
 started, the defendant was not guilty of negligence if it made all the 
 examinations which human skill and foresight could make without 
 taking the machinery to pieces ; and the court did so charge. 
 
 The court also, among other things, charged the juiy that the defend- 
 ant, under the circumstances of this case, was responsible for all defects 
 in the axle by the breaking of which the injury to the plaintiff occurred, 
 and which might have been discerned and remedied, to the same extent 
 as if it had manufactured said axle in its own workshop and by its im- 
 mediate agents. 
 
 The court also charged the jury that although the defendant pur- 
 chased its axles and cars of extensive and skilful manufacturers, who, 
 in the exercise of their skill in the manufacture, knew of no test and 
 used no test to discover latent defects in axles, yet if there was any 
 test known to others, and which should have been known and employed 
 by the manufacturers as men professing skill in their particular busi- 
 ness, although the same may not have been used by some others engaged 
 in the same business of manufacturing cars and axles, defendant was 
 guilty of negligence in not using this test, provided the injury occurred 
 to the plaintiff by reason of a defect which, by such test, might have 
 been discerned. 
 
 The court also charged the jury that if they should be of the opinion 
 that a safety-beam was designed and calculated to prevent an injury to 
 passengers in case of the breaking of an axle, it did not necessarily 
 follow that the defendant was liable because it had not adopted it, but 
 it would be for the jury to say wiiether the defendant was or was not 
 negligent in informing itself of the necessity and utility of the inven- 
 tion and availing itself of it, taking into consideration the vigilance 
 required of carriers of passengers for hire, and of the publicity of the 
 invention, and of its use prior to and at the time of the injury; that 
 it was no apology that the safety-beam was not in use by the New 
 England railroads or by any other particular roads. The counsel for 
 the defendant duly excepted to each portion of the foregoing charge, 
 which was not in accordance with the requests made to the court, above 
 stated. 
 
 The jury rendered a verdict in favor of the plaintiff, and assessed his 
 damages at $9,900. Judgment was rendered upon the verdict. The
 
 166 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Hegeman v. Western Kailroad Corporation. 
 
 defendant thereupon moved, in the Supreme Court, sitting in the Tliird 
 District, for a new trial, 
 
 David L. Seymour, for the plaintiff, M. I. Totvnsend, for the de- 
 fendants. 
 
 The opinion of the court' (consisting of Watson, Wright, and 
 Harris, JJ. ) was delivered by — 
 
 Harris, J. — The defendants were carriers of passengers, and as 
 such were bound to conduct their business with all the care which 
 human prudence and skill could suggest. Any thing short of this 
 would make them liable for the consequences. Having the exclusive 
 management and control of their ears and road, it was presumabK' 
 that no accident would occur without some neglect, or want of skill or 
 foresight. An accident having occurred, and the plaintiff having been 
 injured by means of such accident, a prima facie case of negligence 
 was made out, which, unless it should be overcome by proof on the 
 part of the defendants showing that they had been wholly faultless, 
 would entitle the plaintiff to recover compensation for the injury he had 
 sustained.^ 
 
 This burden of proof was assumed by the defendants. They gave 
 evidence to show that they had purchased the car from a manufacturer 
 of high reputation for the excellence and safetj- of the cars manufac- 
 tured by him ; and that, after emplojang all reasonable care and skill 
 for the purpose of detecting any defect in the machinery, the defect in 
 the axle, which was the cause of the accident, had remained undis- 
 covered, and in fact could not be discovered bj' means of any examina- 
 tion which the defendants were able to make. 
 
 The rule of law applicable to the evidence, upon this branch of the 
 case, was very accurately stated by the learned judge at the circuit. 
 After having distinctly laid down the general proposition that the 
 defendants were not liable if they had exercised all reasonable care and 
 dihgence in providing a safe track and a safe engine and cars, and had 
 properly supplied their train with a suitable number of competent and 
 faithful men to take charge of the train, and those men had managed it 
 in a careful and skilful 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 the axle had been manufactured bj'^ thenisehes. 
 Of the soundness of this rule I think there can be no doubt. From the 
 very necessity of the case, the defendants are obliged to carry on their 
 business through the instrumentality of agents. Some are emplo} ed to 
 
 » 16 Barb. 353. « Holbrook v. Utica etc. K. Co., 16 Barb. 113, and cases there cited.
 
 LATENT DEFECTS IN HIS VEHICLE. 167 
 
 Court of Appeals of New York. 
 
 g . — , 
 
 construct or keep in repair their roadway ; others to construct or repair 
 their engines and cars ; and others, again, to opei'ate such engines and 
 cars upon the road. For neglect or want of skill in any of these, the 
 defendants, as principals, are answerable to third persons. Whether 
 the engine or car which they place upon the road for the purpose of 
 carrying passengers has been manufactured in their own workshops by 
 agents employed directly for that purpose, or by a manufacturer 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 car as safe as care and skill can 
 make it. "When such care and skill have been exercised, the defendants' 
 duty in this respect has been discharged. If, on the other hand, a 
 defect exist in the construction, which might have been detected and 
 I'emedied, they are answerable for the consequences. ^ In the latter 
 case, an injur}' had happened to a passenger in a stage-coach, by reason 
 of an original defect in the construction of an axletree. Alderson, J., 
 said: "A coach proprietor 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-constructed or unsafe vehicles and his passengers be without 
 remedy." Park, J., said: "This was entirely a question of fact. It 
 is clear that there was a defect in the axletree, and it was for the jury 
 to say whether the accident was occasioned by what, in law, is called 
 negligence in the defendant, or not." 
 
 The cases bearing upon this question, both English and American, 
 have been examined with great clearness and ability in Ingalls v. Bills.^ 
 The doctrine stated by Mr. Justice Hubbard, who pronounced the 
 judgment of the court in that case, as the result of his examination, is 
 that, "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. 
 On the other hand, if 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 judg- 
 ment and the most vigilant oversight, then the proprietor is not liable." 
 The question of liability is here put upon its true foundation. It is a 
 question of negligence, not of warranty; a question for the jury, not 
 for the court. It being ascertained that the accident which resulted in 
 the injury for which the action is brought was caused by a defect in the 
 
 > Citing Ang. on Car., § 435 ; Sharp v. Grey, 9 Bing. 457. « 9 Mete. 1, ante, p. 112.
 
 168 LIABILITY OF THE CARRIER TOR NEGLIGENCE. 
 
 Hogemau v. Western Railroad Corporation. 
 
 construction of the vehicle, it must then be referred to the jury to say, 
 upon the evidence, whether "the defect might have been discovered 
 upon a careful and thorough examination," or whether it was so hidden 
 that "the most careful and thorough examination would not have dis- 
 closed it." The charge of the learned judge who tried this case was in 
 conformity with this rule. The jury wei'e instructed that, in respect to 
 the defect in the axle, the defendants' liability would depend upon the 
 question whether the defect was of such a character that it " could have 
 been discovered upon a vigilant examination by a person of competent 
 skill, either at the time of construction or afterwards." The true test 
 of the defendants' liability, upon this branch of the case, was thus pre- 
 sented. 
 
 But the plaintiff, without regard to the question arising upon the 
 defect in the axle, had insisted that the defendants were liable by reason 
 of their omission to provide the car with a safety-beam. Evidence had 
 been given to show that this improvement had been extensively known 
 and used prior to the time when the accident happened, and also to 
 show its utility as a safeguard against accidents. The evidence, though 
 objected to, was properly received. The defendants were bound to 
 use every precaution which human skill and foresight could suggest 
 to insure the safety of their passengers. If, then, it could be shown 
 that the safety-beam was an article of such established utility and so 
 extensively known that it ought to have been used by the defendants 
 upon their cars, they might justly be charged with negligence in not 
 .adopting it. The judge was right, therefore, not only in receiving the 
 evidence, but in submitting it to the jury to say whether, "taking into 
 consideration the vigilance required of carriers of passengers, and the 
 publicity of the invention, and of its use prior to the time of the injury, 
 the defendants were or were not negligent in not informing themselves 
 of the utility and necessity of the invention and availing themselves of it." 
 
 Nor do I think the court is called upon to interfere on the ground 
 of excessive damages. It is true the damages awarded by the jurj- 
 seem quite ample, being nearly twice the amount which could have been 
 recovered if the plaintiff had been actually killed. It must also be 
 conceded that, though the jury have found the defendants chargeable 
 with negligence, it was not a case of very gross negligence. Indeed, 
 the evidence shows no want of ordinary care on the part of the defend- 
 ants. It is only because the defendants were bound to conduct their 
 business with the greatest possible care and caution that they were 
 made liable at all. But, on the other hand, the case shows that the 
 injury sustained by the plaintiff is entirely beyond any pecuniary esti-
 
 LATENT DEFECTS IN HIS VEHICLE. IGO* 
 
 Court of Appeals of New York. 
 
 mate. An artisan engaged in business, he was confined to his bed for 
 several months, and, from the nature of his injuries, must have been 
 the subject of extreme pain and suffering. Up to the time of the trial 
 he had scarcely been able to leave his house, and so permanent are his 
 injuries that it is not probable he will ever again possess the ability to- 
 provide for the support of himself or his family. Under such circum- 
 stances, it cannot be said that the damages awarded by the jury are sa 
 excessive as to call for the interference of the court. The motion for 
 a new trial should therefore be denied. 
 
 New trial denied. 
 
 From this decision the defendants appealed to the Court of Appeals,, 
 where the cause was again argued by — 
 
 John H. Reynolds, for the appellant, and David L. Seymour^ for the 
 respondent. 
 
 The opinion of the court was delivered by — 
 
 Gardiner, C. J. — It has been said that every wayfarer must take 
 the risks incident to the mode of travel he adopts ; but these risks are 
 only those which cannot be avoided by the carrier of passengers by the 
 utmost degree of care and skill in the preparation and management 
 of the means of convej'ance.^ The carrier, in the language of other 
 judges, is bound to use all precautions, as far as human care and 
 foresight will go, for the safety of his passengers. ^ In the applica- 
 tion of these principles, it is obvious that the same precautions will 
 not exonerate the carrier of passengers fi'om responsibility in every 
 mode of travel. The foresight and preparation that would suffice ta 
 satisfy the rule in one species of navigation or conveyance, would not 
 answer in another ; and the external examination which, in connection 
 with the reputation of the builder of a stage-coach, would and ought to 
 satisfy the scruples of the most cautious person as to the safety and 
 security of a vehicle designed to run from six to eight miles the hour, 
 would not satisfy any reasonable man as to the sufficiency of another, 
 intended to sustain a far greater weight, and to be propelled by steam 
 thirty, forty, or fifty miles in the same time. The charge of the 
 learned judge at the trial assumes and proceeds upon this distinction 
 throughout ; and in that part of it where he gives the measure of the 
 responsibility of the defendant, in the strongest terms against him and 
 in favor of the plaintiff, he says, " that although the defendant purchased 
 his axles and cars of extensive and skilful manufacturers, who, in the 
 
 1 Ang. on Car., § 6^. • 8 Kent's Comm. (7th ed.) 602, and cases cited.
 
 170 LIABILITY or THE CARRIER FOR >!EGIJGENCE. 
 
 Hegeman v. Western Railroad Corporation. 
 
 exercise of their skill, knew of no test and used no test to discover 
 latent defects in axles, yet if there were any tests known to others^ and 
 which should have been known and employed by the manufacturers as 
 inen professing skill in their particular business, although the same 
 may not have been used by some others engaged in the same business, 
 defendant was guilty of negligence in not using this test, provided the 
 injury occurred to the plaintiff by reason of a defect which, by such 
 test, might have been discovered." The substance of the charge was, 
 that although the defect was latent, and could not be discovered by the 
 most vigilant external examination, yet if it could be ascertained by a 
 known test, applied either by the manufacturer or the defendant, the 
 latter was responsible. 
 
 In these instructions there was no error. Ingalls v. Bills,^ cited by 
 the defendant's counsel, was the case of a stage-coach, in which the 
 injury was occasioned by the breaking of the axle. The fracture was 
 internal, and surrounded by sound iron one-quarter of an inch thick. 
 The court held that where the accident arises from a hidden and internal 
 defect, and which could not be guarded against by the exercise of a 
 sound judgment and the most vigilant oversight, then the proprietor 
 was not liable for the injury. I concur in that decision, in the par- 
 ticular case presented; but the learned judge did not intimate "that 
 a sound judgment and the most vigilant oversight" would be evidenced 
 by the adoption of the same methods of examination in the case of 
 a stage-coach and a car for the express-train of a railroad. The 
 mode of construction, the purposes to be subserved, and, above all, 
 the probable consequences of a hidden defect, in the two cases are 
 altogether diffei'ent. It might as plausibly be urged that a chain for 
 agricultural purposes and the cable of a ship of the line should be 
 subjected to the same tests, because both were chains and each manu- 
 factured of the same material. Keeping the distinction indicated in 
 view, the charge was sufficiently favorable to the defendant. 
 
 Two questions were presented for the consideration of the jur}': 
 Jirst, Was there a test known to and used by others, and which should 
 have been known to a skilful manufacturer, by which the concealed 
 defect in the axle of the car could have been detected? and if so, then, 
 secondly, Was the injury to the plaintiff the consequence of that imper- 
 fection? There was evidence tending to establish these facts, which 
 the jury have found ; and the question returns, Can the defendant, who 
 
 1 9 Mete. 1, ante, p. 112.
 
 lat!:nt defects in his vehicle. 171 
 
 Court of Appeals of New York. 
 
 neither applied the test, nor caused it to be applied by the manufacturer, 
 insist that this accident " could not have been avoided by the utmost 
 degree of care and skill in the preparation of the means of convey- 
 ance," or "that they used all precautions, as far as human care and 
 foresight would go, for the safety of the plaintiff as one of their pas- 
 sengers"? It seems to me that there can be but one answer to the 
 question. 
 
 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 require is that they shall fur- 
 nish a sufficient car tcf secure the safety of their passengers, by the 
 exercise of the "• utmost care and skill in its preparation." They may 
 construct it themselves, or avail themselves of the services of others ; 
 but in either case they engage that all that well-directed skill can do 
 has been done for the accomplishment of this object. A good repu- 
 tation 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 corpora- 
 tion, is not merely that the manufacturer had the requisite capacity, 
 but that it was skilfully exercised in the particular instance. If to this 
 extent "they are not responsible, there is no security for individuals or 
 the public. 
 
 It is perfectly understood that latent defects may exist undiscoverable 
 by the most vigilant examination, when the fabric is completed, from 
 which the most serious accidents have and may occur. It is also well 
 known, as the evidence in this suit tended to prove and the jury have 
 found, 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 
 it could be detected. This should have been known and applied by men 
 "professing skill in that particular business." It was not known, or, 
 if known, was not applied by these manufacturers. It was not used 
 by the defendant, nor did they 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 the axles, or in the manufacture of them. For this omission of 
 duty, or want of skill, the learned judge held, and I think correctly, 
 that they were liable. 
 
 This is the only important question in the cause. The requests of 
 the defendant's counsel to the judge for instructions to the juiy, were
 
 172 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Hegeman v. Western Railroad Corporation. 
 
 intended to present this principal point in its strongest aspect for the 
 defendant ; and all the exceptions are determined, if the above sugges- 
 tions are well founded. 
 
 The evidence of the utility and use of the safety-beam was properly 
 admitted. It had been used in New Jersey eleven years before this 
 accident, and upon some of the Albany and Buffalo roads from the 
 latter part of the year 1846, and in 1851 was introduced upon the road 
 of the defendant. Whether the adoption of this improvement, under 
 all the circumstances, was a necessary or proper precaution on the part 
 of the defendant, was correctly submitted to the jury. 
 
 The judgment of the vSupreme Court should be affirmed. 
 
 Johnson, Hand, Cbippen, and Dean, JJ., concurred in the foregoing^ 
 opinion. 
 
 Marvin, J. (dissenting). — In his charge, the learned justice first told 
 the jury that if the defendant exercised all the care and diligence which 
 he [they] could reasonably exercise in providing a safe track and a safe 
 engine and cars, and properly supplied their train with a suitable num- 
 ber of competent and faithful men to take charge of it, and those men 
 managed the train in a careful and skilful manner, the defendant was 
 not liable. This instruction was given in the form desired by the 
 defendant. In a subsequent part of the charge, the judge instructed 
 the jury that the defendant was responsible for any defects which were 
 known to the manufacturer, or which might have been discovered by 
 him upon a vigilant and careful examination of the axle, or which, after 
 delivery, might have been discovered upon a like examination by a 
 competent person; that the- reputation of the manufacturer should be 
 taken into consideration with the other circumstances, but would not 
 alone absolve the defendant from responsibilities. The defendant ex- 
 cepted to this part of the charge. 
 
 The car, the axle of which was broken, was manufactured by the 
 Springfield Car and Engine Company for the defendant. This company 
 :nanufactured cars for many railroad companies. It procured the 
 axle that broke in the present case from Ames's factory, an extensive 
 manufactory of iron. I do not understand that the Springfield Car 
 and Engine Company, or Ames or his factory, were in any sense the 
 servants or agents of the defendant. The latter worked in iron, and made 
 axles and sold them to the manufacturers of cars or to railroad com- 
 panies; and the former manufactured to order, cars, etc, for railroads. 
 As I understand the charge, the defendant was to be held responsible 
 for any defects in the axle which were known to the manufacturer, or 
 which might have been discovered by him upon a vigilant and careful
 
 LATENT DEFECTS IN HIS VEHICLE. 173 
 
 Court of Appeals of New York. 
 
 •examination ; it is added, " or which, after delivery, might have been 
 discovered upon a like examination by a competent person." The 
 judge further charged that, as to the materials of which the axle was 
 made, if the}^ were not of a proper quality, or wrought in a proper 
 manner, and the defects were of that character that they could have 
 been discovered upon a vigilant examination by a person of competent 
 skill, either at the time of the construction or afterwards, then the 
 defendant was responsible for the consequences. He also charged that 
 the defendant was responsible for all defects in the axle, which might 
 have been discovered and remedied, to the same extent as if the defend- 
 ant had manufactured said axle in its own workshop and by its imme- 
 diate agents. The charge takes the position that the defendant was 
 responsible for an}- defect in the axle, whether of materials, workman- 
 ship, or otherwise, which were known, or might have been discovered by 
 the manufacturer upon a vigilant and careful examination at the time 
 of construction or afterwards. In other words, the defendant was 
 made surety for the skill and extraordinary care and vigilance of the 
 manufacturers ; and if, in fact, a defect existed or happened at the time 
 of construction, which could have been detected by the manufacturer, 
 though such defect was secret at the time the defendant purchased and 
 used the axle, and not discoverable, still the defendant would be liable 
 for the want of care on the part of the manufacturer. In my opinion, 
 this position cannot be sustained unless we are prepared to hold that 
 railroad companies shall be held liable for all defects, whether discover- 
 able or not; thus making them warrantors of the roadworthiness of 
 their cars, etc. The manufacturers of the axle and the car were not 
 the servants or agents of the defendant ; they pursued an independent 
 business, and for any want of care or skill, or for negligence, they were 
 liable. It would, in my opinion, be very dangerous to establish the 
 rule that he who purchases and uses an article manufactured by a 
 mechanic shall be responsible for any injury to third persons in conse- 
 quence of a defect in the article, not discoverable by the purchaser and 
 user. Such a principle would be far-reaching, and it is not possible 
 now to consider and fix a limit to the cases to which it would apply. It 
 goes entirely beyond the rule making every one responsible for his own 
 neffligence and the negligence of his servants and agents. 
 
 In Stevens v. Armstrong,^ it was held by this court that to render one 
 person liable for the negligence of another, the relation of master and 
 servant or principal and agent must exist between them. In the pres- 
 
 » 6 N. Y. 435.
 
 174 LIABILITY or THE CARRIER FOR NEGLIGENCE. 
 
 Hegeraan v. Western Railroad Corporation. 
 
 ent case, it is argued that the charge of the judge is not in conflict with 
 the case just cited; that it does not make the defendant liable for the 
 negligence of the manufacturer, but for its own neglect in not doing, 
 or causing to be done, what human care and foresight could have done 
 to discover and remedy the defect in the construction of the car in 
 question. Does not this proposition involve the responsibility of the 
 defendant for any want of care or for any neglect in the manufacturer, 
 though such want of care or neglect could not be detected after the car 
 was completed and when it was put in use? As I understand the judge, 
 he made the defendant liable for any defect happening during the con- 
 struction of the car and axle which could have been detected by the 
 manufacturer, though it could not be detected by the defendant after 
 the car and axle were completed. I agree that the defendant should be 
 held to the exercise of the utmost care and diligence. I think in 
 Ingalls v. Bills ^ the proper distinction was made and the true prin- 
 ciples were established. In that case, decided in 1845, all the English 
 cases were reviewed and the American cases referred to, and I shall con- 
 tent myself with this reference to that case, adopting the reasoning of the 
 court there and applying it to the present case, I think the learned judge 
 erred in the rule of responsibility, and that there should be a new trial. 
 
 Denio, J. (dissenting). — I understand the effect of the charge to 
 be that the defendant is responsible in the same manner which he 
 would be if, besides managing the railroad, he was also the manufac- 
 turer of his cars, and of all the parts of which they are composed, 
 including the axles. The workmen of the iron manufacturers are to be 
 regarded, according to the charge, as the servants of the railroad com- 
 pany, and it is responsible for the negligence of such workmen as for 
 that of its immediate agents and servants. This, I think, cannot be 
 sustained. If the defendant had chosen to commit to others the doing 
 of things which its charter contemplated should be performed by the 
 company, it might be estopped from alleging that such other persons 
 were not its servants ; but the manufacture of the passenger-cars is a 
 separate and distinct business, and the workmen employed in construct- 
 ing them and the iron-work composing their several parts are not, in 
 my opinion, in any proper sense the servants of the railroad corpora- 
 tion. The cases upon the point have been mentioned by Judge Marvin, 
 and it is only necessary to add to them those which are referred to in 
 Smith's Treatise on the Law of Master and Servant, at p. 164 et seq. 
 
 I am in favor of reversing the judgment of the Supreme Court. 
 
 Judgment affirmed. 
 
 1 9 Mete. 1, ante, p. 112.
 
 Associate Justices, 
 
 LATENT DEFECTS IN HIS VEHICLE. 175 
 
 Supi-eme Court of the United States. 
 
 4. THE SAME SUBJECT, IN ITS APPLICATION TO FREE PASSENGEES. 
 
 Steamboat New World v. King.* 
 /Supreme Court of the United States, 1853, 
 
 Hon. EoGER B. Taney, Chief Justice. 
 
 " John McLean, 
 
 " James M. Wayne, 
 
 ** John Catron, 
 
 " Peter V. Daniel, 
 
 ** Samuel Nelson, 
 
 *♦ Robert C. Grier, 
 
 *' Benjamin R. Curtis, 
 
 " John A. Campbell, 
 
 1. ITegligrent Injury to Free Passenger. — Where it was shown to be cnstomary for 
 
 masters of steamboats to permit persons who were usually employed upon steamboats 
 to ride from one place to another free, it was held that a person who had been an 
 employee on the particular boat, and who had been permitted by the master to ride 
 upon it without paying fare, was lawfully thereon, and that for an injury done him by 
 the negligence of the crew in the management of the steamboat, he was entitled to 
 recover damages. 
 
 2. Obligation of Carriers of Passengers by Steam. —The following language of the 
 
 court in Philadelphia and Reading Railroad Company \. Derby ^ is reaffirmed: "When 
 carriers undertake to convey persons by the powerful but dangerous agency of 
 Bteam, public policy and safety require that they shall be held to the greatest possible 
 care and diligence. And whether the consideration for such transportation be pecu- 
 niary or otherwise, the personal safety of passengers should not be left to the sport of 
 chance or the negligence of careless agents. Any negligence in such cases may well 
 deserve the epithet of gross." 
 
 3. Degrees of Negligence. — Per Curtis, J.: The theory that there are three grades of 
 
 negligence cannot be usefully applied in practice. 
 
 4. Negligence in Employments which require Skill. — Whenever a person under- 
 
 takes an employment which requires skill, whether for a reward or gratuitously, 
 a failure to exert the measure of skill appropriate to such employment is culpable 
 negligence, and for damages resulting from such failure an action lies. 
 
 5. Burden of Proof under Act of Congress relating to Vessels propelled by 
 
 Steam. — Under § 1:5 of the act of July 7, 18:}8 (5 Stats, at Large, 306), if a person is 
 injured on board a steamboat by the injurious escape of steam, it is incumbent upon 
 the owners, in an action against them, to prove that there was no negligence. 
 
 The case is stated in tlie opinion. 
 CuUing, for the appellants ; Mayer, contra. 
 
 Mr. Justice Curtis delivered the opinion of the court. — This is an 
 appeal from a decree of the District Court of the United States for the 
 
 • Reported, 16 How. 469. 
 ' Ante, p. 31.
 
 176 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Steamboat New World v. King. 
 
 Northern District of California, sitting in admiralty. The libel alleges 
 that the appellee was a passenger on board the steamer on a voyage 
 from Sacramento to San Francisco, in June, 1851, and that, while navi- 
 gating within the ebb and flow of the tide, a boiler-flue was exploded 
 through negligence, and the appellee grievously scalded by the steam 
 -ind hot water. 
 
 The answer admits that an explosion occurred at the time and place 
 alleged in the libel, and that the appellee was on board and was injured 
 thereby, but denies that he was a passenger for hire, or that the explo- 
 sion was the consequence of negligence. 
 
 The evidence shows that it is customary for the masters of steam- 
 boats to permit persons whose usual employment is on board of such 
 boats to go from place to place free of charge ; that the appellee had 
 formerly been eraploAcd as a waiter on board this boat, and just before 
 she sailed from Sacramento he app*lied to the master for a free passage 
 to San Francisco, which was granted to him, and he came on board. 
 It has been urged that the master had no power to impose any obliga- 
 tion on the steamboat by receiving a passenger without compensation. 
 But it cannot be necessary that the compensation should be in monej'^, 
 or that it should accrue directly to the owners of the boat. If the 
 master acted under an authority usually exercised by masters of steam- 
 boats, if such exercise of authority must be presumed to be known 
 to and acquiesced in by the owners, and the practice is even indi- 
 rectly beneficial to them, it must be considered to have been a lawful 
 exercise of an authority incident to his command. 
 
 It is proved that the custom thus to i*eceive steamboatmen is general. 
 The owners must therefore be taken to have known it, and to have 
 acquiesced in it, inasmuch as they did not forbid the master to conform 
 to it. And the fair presumption is that the custom is one beneficial to 
 tliemselves. Any privilege generally accorded to persons in a particular 
 employment tends to render that employment more desirable, and, of 
 course, to enable the employer more easily and cheaply to obtain men 
 to supply his wants. 
 
 It is true the master of a steamboat, like other agents, has not an 
 unlimited authority. He is the agent of the owner to do only what is 
 usually done in the particular employment in which he is engaged. 
 Such is the general result of the authorities. ^ But different employ- 
 ments may and do have different usages, and consequently confer on 
 the master different powers. And when, as in this case, a usage 
 
 » Smith on Merc. Law, 559; Grant v. Norway, 10 C. B. 688; s. c. 2 Eng. Law & Eq. 337; Pope 
 V. Xickerson, 3 Story, 475; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 32.
 
 LATENT DEFECTS IN HIS VEHICLE. 177 
 
 Supreme Court of the United States. 
 
 appears to be general, not unreasonable in itself, and indirectly bene- 
 ficial to the owner, we are of opinion the master has power to act 
 under it and bind the owner. 
 
 The appellee must be deemed to have been lawfully on board under 
 this general custom. 
 
 Whether precisely the same obligations in all respects on the part of 
 the master and owners and their boat existed in his case as in that of 
 an ordinary passenger paying fai*e, we do not find it necessary to de- 
 termine. In Philadelphia and Reading Railroad Company v. Derby, ^ 
 which was a case of gratuitous carriage of a passenger on a railroad, 
 this court said: "When carriers undertake to convey persons by the 
 powerful but dangerous agency of steam, public policy and safety 
 require that they should be held to the greatest possible care and dili- 
 gence. And whether the consideration for such transportation be 
 pecuniary or otherwise, the personal safety of passengers should not be 
 left to the sport of chance or the negligence of careless agents. Any 
 negligence in such cases may well deserve the epithet of gross." 
 
 We desire to be understood to reaffirm that doctrine, as resting not 
 only on public policy, but on sound principles of law. 
 
 The theory that there are three degrees of negligence, described \>y 
 the terms slight, ordinary, and gross, has been introduced into the 
 common law from some of the commentators on the Roman law. It 
 may be doubted if these terms can be usefully applied in practice. 
 Their meaning is not fixed, or capable of being so. One degree, thus 
 described, not only may be confounded with another, but it is quite 
 impracticable exactly to distinguish them. Their signification neces- 
 sarily varies according to circumstances, to whose influence the courts 
 have been forced to yield, until there are so many real exceptions that 
 the rules themselves can scarcely be said to have a general operation. 
 In Storer v. Gotven,^ the Supreme Court of Maine say: "How much 
 care will, in a given case, relieve a party from the imputation of gross 
 negligence, or what omission will amount to the charge, is necessarily 
 a question of fact, depending on a great variety of circumstances, 
 which the law cannot exactly define." Mr. Justice Story says:^ "In- 
 deed, what is common or ordinary diligence is more a matter of fact 
 than of law." If the law furnislies no definition of the terms gross 
 negligence, or ordinary negligence, which can be applied in prac- 
 tice, but leaves it to the jury to determine in each case what the duty 
 
 > 14 How. 486, ante, p. 31. » 18 Me. 177. » Story on Bail., S IL 
 
 12
 
 178 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Steamboat New World v. King. 
 
 was, and what omissions amount to a breacli of it, it would seem that 
 imperfect and confessedly unsuccessful attempts to define that duty had 
 better be abandoned. 
 
 Recentl}^ the judges of several courts have expressed their disap- 
 probation of these attempts to fix the degrees of diligence by legal 
 • I' rinitions, and have complained of the impracticabilit}' of applying 
 Uiem.^ It must be confessed that the difficulty in defining gross negli- 
 gence, which is apparent in perusing such cases as Tracy v. Wood ^ and 
 Foster v. The Essex Bank,^ would alone be sufficient to justify these 
 complaints. It may be added that some of the ablest commentators on 
 the Roman law, and on the Civil Code of France, have wholly repudi- 
 ated this theory of three degrees of diligence, as unfounded in principles 
 of natural justice, useless in practice, and presenting inextricable em- 
 barrassments and difficulties.^ 
 
 But whether this term, gross negligence, be used or not, this partic- 
 ular case is one of gross negligence, according to the tests which have 
 been applied to such a case. 
 
 In the first place, it is settled that " the bailee must proportion his 
 care to 'the injiuy or loss which is likely to be sustained by any improvi- 
 dence on his part." ^ 
 
 It is also settled that if the occupation or employment be one requiring 
 skill, the failure to exert that needful skill, either because it is not 
 possessed or from inattention, is gross negligence. Thus, Heath, J., in 
 Shidls V. BlacJcburne,^ says: "If a man applies to a surgeon to attend 
 him in a disorder for a reward, and the surgeon treats him improperly, 
 there is gross negligence, and the surgeon is liable to an action ; the 
 surgeon would also be liable for such negligence if he undertook gratis 
 to attend a sick person, because his situation implies skill in surgery." 
 And Lord Loughborough declares that an omission to use skill is gross 
 negligence. Mr. Justice Story, although he controverts the doctrine 
 of Pothier, that any negligence renders a gratuitous bailee responsible 
 for the loss occasioned by his fault, and also the distinction made by 
 Sir William Jones between an undertaking to carry and an undertaking 
 to do work, yet admits that the responsibility' exists when there is a want 
 of due skill, or an omission to exercise it. And the same may be said 
 
 1 Wilson V. Brett, 11 Mee. & W. 113 ; Wylde * See Toullier's Droit Civil, 6th voL, p. 239, 
 y. Pickfoi-d, 8 Mee. & W. 443, 461, 462 ; Hinton etc.; id., lltli voL, p. '20.i, etc.; Mackeldey, 
 V. Dibbin, 2 Q. B. 646, 651. Man. Du Droit Romain, 191, etc. 
 
 2 3 Mason, 132. * Story on Bail., § 15. 
 8 17 Mass. 479. « 1 H. Black. 161.
 
 LATENT DEFECTS IN HIS VEHICLE. 179 
 
 Supreme Court of the United States. 
 
 of Mr. Justice Porter, in Percy v. Millaudnn.^ This qualification of 
 the rule is also recognized in Stanton v. Bell.^ 
 
 That the proper management of the boilers and machinery of a 
 steamboat requires skill, must be admitted. Indeed, by the act of 
 Congress of August 30, 1852, great and unusual precautions are taken 
 to exclude from this employment all persons who do not possess it. 
 That an omission to exercise this skill vigilantly and faithfull}', endan- 
 gers to a frightful extent the lives and limbs of great numbers of 
 human beings, the awful destruction of life in our country by explo- 
 sions of steam-boilers but too painfully proves. We do not hesitate, 
 therefore, to declare that negligence in the care or management of such 
 boilers, for which skill is necessary, the probable consequence of which 
 negligence is injury and loss of the most disastrous kind, is to be 
 deemed culpable negligence, rendering the owners and the boat liable 
 for damages, even in case of the gratuitous carriage of a passenger. 
 Indeed, as to explosion of boilers and flues, or other dangerous escape 
 of steam on board steamboats. Congress has in clear terms excluded all 
 such cases from the operation of a rule requiring gross negligence 
 to be proved to lay the foundation of an action for damages to person 
 or property. 
 
 The thirteenth section of the act of July 7, 1838,3 provides: "That 
 in all suits and actions against proprietors of steamboats for injury 
 arising to persons or property from the bursting of the boiler of any 
 steamboat, or the collapse of a flue, or other dangerous escape of steam, 
 the fact of such bursting, collapse, or injurious escape of steam shall 
 be taken as full prima facie evidence sutficient to charge the defendant, 
 or those in his employment, with negligence, until he shall show that no 
 negligence has been committed by him, or those in his employment." 
 
 This case falls within this section ; and it is therefore incumbent on 
 the claimants to prove that no negligence has been committed by those 
 in their employment. 
 
 Have they proved this? It appears that the disaster happened a 
 short distance above Benicia ; that another steamer, called the Wilson 
 G. Hunt, was thou about a quarter of a mile astern of the New World, 
 and that the boat first arriving at Benicia got from twenty-five to fifty 
 passengers. The pilot of the Hunt says he hardly knows whether the 
 boats were racing, but both were doing their best ; and this is confirmed 
 by the assistant pilot, who says the boats were always supposed to come 
 
 1 8 Martin, 76. > 2 Hawks, 145. » 5 Stats, at Large, 306.
 
 180 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Steamboat New "World v. King. 
 
 down as fast as possible ; the first boat at Benicia gets from twenty-five 
 to fifty passengers. And he adds that at a particular place, called " the 
 slough," the Hunt attempted to pass the New World. Fay, a passenger 
 on board the New World, swears that on two occasions before reaching 
 " the slough " the Hunt attempted to pass the New Woi'ld, and failed ; 
 that to his knowledge these boats had been in the habit of contending 
 for the mnstery, and on this occasion both were doing their best. The 
 fact that the Hunt attempted to pass the New World in "the slough" 
 is denied by two of the respondents' witnesses, but they do not meet 
 the testimony of Fay as to the two previous attempts. Haskell, another 
 passenger, says: "About ten minutes before the explosion I was stand- 
 ing looking at the engine; we saw the engineer was evidently excited, 
 by his running to a little window to look out at the boat behind. He 
 repeated this ten or fifteen times in a very short time." The master, 
 clerk, engineer, assistant engineer, pilot, one fireman, and the steward 
 of the New World were examined on behalf of the claimants. No 
 one of them, save the pilot, denies the fact that the boats were racing. 
 With the exception of the pilot and the engineer, they are wholly silent 
 on the subject. The pilot says the}^ were not racing. The engineer 
 saj'S: "We have had*some little strife between us and the Hunt as to 
 who should get to Benicia first. There was an agreement made that we 
 should go first. I think it was a trip or two before." Considering that 
 the master sa^'s nothing of any such agreement ; that it does not appear 
 to have been known to any other person on board either boat; that this 
 witness and the pilot were both directly connected with and responsible 
 for the negligence charged ; and that the fact of racing is substantiall}' 
 sworn to by two passengers on board the New World, and bj^ the pilot 
 and assistant pilot of the Hunt^ and is not denied by the master of the 
 New World, we cannot avoid the conclusion that the fact is proved. And 
 certainly it greatly increases the burden which the act of Congress has 
 thrown on the claimants. It is possible that those managing a steam- 
 boat engaged in a race may use all that care and adopt all those precau- 
 tions which the dangerous power they employ renders necessary to 
 safety ; but it is highly improbable. The excitement engendered by 
 strife for victory is not a fit temper of mind for men on whose judg- 
 ment, vigilance, coolness, and skill the lives of passengers depend. 
 And when a disastrous explosion has occurred in such a strife, this cour 
 cannot treat the evidence of those engaged in it, and prima facie 
 responsible for its consequences, as sufficient to disprove their own 
 negUgence, which the law presumes.
 
 PRESUMPTION FROM FACT OF ACCIDENT. 181 
 
 English Court of King's Bench. 
 
 We consider the testimony of the assistant engineer and fireman, who 
 are the only witnesses who speak to the quantity of steam carried, as 
 wholly unsatisfactory. They say the boiler was allowed by the inspector 
 to carry forty pounds to the inch, and that when the explosion occurred 
 they were carrying but twenty-three pounds. The principal engineer 
 says he does not remember how much steam they had on. The master 
 is silent on the subject, and says nothing as to the speed of the boat. 
 The clear weight of the evidence is that the boat was, to use the 
 language of some of the witnesses, doing its best. We are not con- 
 vinced that she was carrying only twenty-three pounds, — little more 
 than half her allowance. 
 
 This is the only evidence by which the claimants have endeavored to 
 encounter the presumption of negligence. In our opinion, it does not 
 disprove it ; and consequently the claimants are liable to damages, and 
 the decree of the District Court must be affirmed. 
 
 Decree affirmed. 
 
 6. pbesxjmption or negligence feom the happening of the 
 
 accident. 
 
 Christie v. Griggs.* 
 
 English Court of King's Bench, 1809. 
 
 Before Lord Mansfield, Chief Justice, at Nisi Prius. 
 
 1 Breaking- of Vehicle prima facie Evidence of Negligence. — In an action against 
 the proprietor of a stage-coach for neghgence whereby the coach broke down, and the 
 plaintiff, travelling by it as a passenger, was hurt, to prove negligence it is prima facie 
 enough to give evidence of the coach having broke down, from which negligence will 
 be inferred. 
 
 2. Carrier not answerable for Mere Accident. — The proprietor of a stage-coach is 
 not answerable for any damage that may happen to a passenger from the coach being 
 overturned by mere accident. 
 
 This was an action of assumpsit against the defendant as owner of 
 the Blackwall stage, on whieh the plaintiff (a pilot) was travelling to 
 London, when it broke down, and he was greatly bruised. The first 
 count imputed the accident to the negligence of the driver ; the second, 
 to the insufficiency of the carriage. 
 
 The plaintiff having proved that the axletree snapped asunder at a 
 
 • Reported, 2 Camp. 79,
 
 182 LIABILITY OF THE CAKKIEK FOR NEGLIGENCE. 
 
 Christie v. Griggs. 
 
 place where there is a slight descent from the kennel crossing the road, 
 that he was in consequence precipitated from the top of the coach, and 
 that the bruises he received confined him several weeks to his bed, 
 there rested his case. 
 
 Vaxghan, Serjt., and Roberts^ for the plaintiff; Best, Serjt., for the 
 defendant. 
 
 Best, Serjt., contended strenuously that the plaintiff was bound to 
 proceed farther, and give evidence either of the driver being unskilful 
 or of the coach being insufficient. 
 
 Sir James Mansfield, C. J. — I think the plaintiff has made a prima 
 facie case by proving his going on the coach, the accident, and the dam- 
 age he has suffered. It now lies on the other side to show that the 
 coach was as good a coach as could be made, and that the driver was as 
 skilful a driver as could anywhere be found. What other evidence can 
 the plaintiff give? The passengers were probably all sailors like him- 
 self, and how do they know whether the coach was well built, or 
 whether the coachman drove skilfully? In many other cases of this 
 sort it must l)e equally impossible for the plaintiff to give the evidence 
 required. But when the breaking down or overturning of a coach is 
 proved, negligence on the part of the owner is implied. He has always 
 the means to rebut this presumption, if it be unfounded ; and it is now 
 incumbent on the defendant to make out that the damage in this case 
 arose from what tlie law considers a mere accident. 
 
 The defendant then called several witnesses, who swore that the axle- 
 tree had been examined a few days before it broke, without any flaw 
 being discovered in it ; and that when the accident happened, the coach- 
 man, a very skilful driver, was driving in the usual track and at a 
 moderate i)ace. 
 
 Sir James Mansfield said, as the driver had been cleared of every 
 thing like negligence, the question for the jury would be as to the 
 sufficiency of tlie coach. If the axletree was sound, as far as human eye 
 could discover, the defendant was not liable. There was a difference 
 between a contract to carry goods and a contract to carry passengers. 
 For the goods the carrier was answerable at all events. But he did not 
 warrant the safety of the passengers. His undertaking as to them went 
 no farther than this, that as far as human care and foresight could go, 
 he would provide for their safe conversance. Therefore, if the breaking 
 down of the coach was purely accidental, the plaintiff had no remedy 
 for the misfortune he had encountered. 
 
 The jury found a verdict for the defendant.
 
 PRESUAirTlO.N FKOM FACT OF ACCIDENT. 183 
 
 Supreme Court of the United States. 
 
 6. THE SAME SUBJECT — CONTRIBUTORY NEGLIGENCE OF THE PAS- 
 SENGER. 
 
 Stokes v. Saltonstall.* 
 Supreme Court of the United States, 1839, 
 
 Hon. Roger B. Taney, Chief Justice. 
 
 " Joseph Story, 
 
 •* Smith Thompson, 
 
 ** John McLean, 
 
 ** Henry Baldwin, 
 
 •* James M. Wayne, 
 
 «« Philip P. Barbour, 
 
 ** John Catron, 
 
 " John McKinley, 
 
 - Associate Justices, 
 
 1. Extent of Liability. — A carrier of passengers for hire is not an insurer for their 
 
 safety; but in case they are injured while in transit, he is or is not liable to pay damages 
 for such injury, accordingly as he or his servants or agents have or have not been guilty 
 of negligence. 
 
 2. Presumption from happening: of Accident — Burden of Proof. — The fact that an 
 
 accident happened to a passenger by ttie upsetting of the carrier's vehicle, is prima 
 facie evidence of negligence, or want of the proper skill, on the part of the carrier, and 
 throws upon the carrier the burden of proving that the accident happened without his 
 fault. 
 
 3. What -will rebut this Presumption. — In order to rebut this presumption, the carrier 
 
 must show that his servant in charge of the vehicle was a person of competent skill, of 
 good habits, and in other rcsjiects qualified and suitably prepared for the business 
 in which he was engaged; that he acted upon the particular occasion with reasonable 
 skill and with the utmost prudence and caution, and that the disaster was not occa- 
 sioned by the least negligence, or want of skill or prudence, on his part. 
 
 4. Contributory Ne^lig-ence of the Passengar. — A person is not chargeable with con- 
 
 tributory negligence for acting erroneously in a position of sudden danger in which 
 he is placed by the negligence or fault of another. If, therefore, a stage-coach is upset 
 by the negligence of its driver, and the passenger therein, under the impulse of fear, 
 acts in a manner which results in an injury to him, where, if he had remained calm, and 
 kept his place, he would have escaped injury, he will not thereby be precluded from 
 recovering damages of the carrier. 
 
 Schley, for the plaintiff ; Johnson, contra. 
 
 Barbour, J., delivered the opinion of the court. — 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 
 a rainst the phiinliff in error and Ricliard C. Stockton to recover 
 
 * Uepnrtcd, 13 Pet. 181 faflfirmings. c. snh num. '^al'nisiall v Stockton, Taney's Dec. 11).
 
 184 LIABILITY OF THE CARRIER FOR NEGLIGEXCE. 
 
 Stokes V. Saltonstall. 
 
 damages for an injury 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 recoverable 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 i-efused. 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 fiml 
 that the injury of which the plaintiff complains was occasioned by the 
 negligence, or want of proper skill or care, of 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 lyrimd facie 
 evidence that there was carelessness, .or negligence, o^r 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 fiora 
 it, then the defendant is not liable to this action ; but if the want of
 
 PRESIBIPTION FROM FACX OF ACCIDENT. 185 
 
 Supreme Court of the United States. 
 
 proper skill or care of the driver placed the passengers in a state of 
 peril, and they had at that 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 
 belijve, from the position in which the stage was placed from the negli- 
 gence 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 prob- 
 ably have sustained little or no injury if thej' had remained in the stage. 
 
 4. If the jur}' shall find that the driver was a person of competent 
 skill, and in ever}' respect qualified and suitably prepared for the busi- 
 ness 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 dut}', 
 then the defendant is not liable in this action. 
 
 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 instruc- 
 tions asked for by the defendant and which the court refused to give, 
 because those which the}' did give cover the whole ground ; and there- 
 fore it depends upon their correctness whether the judgment is to be 
 affirmed or not. 
 
 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 sub- 
 stance thus laid down in the case of Christie v. Griggs.^ 
 
 So it is also in the case of Aston v, Heaven^'^ 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 neghgence. 
 
 1 2 Camp. 79, ante, p 181. • 2 Esp. 633.
 
 18fc) LIABILITY or THE 'CARRIER FOR NEGLIGENCE. 
 
 Stokes V. Saltonstall. 
 
 The principle is thus laid down in 2 Kent's Commentaries (7tb ed. ), 
 p. 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 proposi- 
 tion he refers to the two cases which we have just cited. 
 
 In Story on Baihnents, 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 in caution he comes in collision with another carriage." To which 
 we will add the further example : whenever there is rapid driving which, 
 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 travelling 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.^ 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 ; 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 any 
 thing 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 
 
 1 2 Pet. 150.
 
 PRESUMPTION FROM FACT OF ACCIDENT. 187 
 
 Supreme Court of the United States. 
 
 those instructions which relates to the omis prnbancU; and althongh 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 has 
 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. But although 
 tiiere 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, C. J., 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 over- 
 turning 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 sub- 
 stantially 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 th.-it 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 ihe plaintiff' s pn'ma /aae case, to prove that the 
 driver was a person of competent skill, of good habits, and in every 
 respect qualified and suitably prepared for tlie 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 tlie form of a negative 
 proposition before, — that is, that the accident was not occasioned by 
 the driver's fault. The third instruction also announces a principle 
 whicli we think stands supported by the soundest reason, and we should 
 therefore adopt it as being correct if it were altogether a new question. 
 
 But this too is in accordance with the doctrine of Lord Ellenbor- 
 OKGH ill 1 Starkie's Cases, 403, in which he says that to enable the 
 plaintiff to sustain tiie action it is not necessary tliat he should have 
 bi'cn thrown off tlie coacli ; it is sufficient if he were placed, by the mis-
 
 188 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Curtis V. Rochester and Syi'acuse Railroad Company. 
 
 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 fault of the defendant, 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 
 which he sustained is to be attributed to rashness and imprudence, he 
 is not entitled to recover. 
 
 The instruction which we are now considering is framed in the spirit 
 of the principle which we have just stated, and we think it wholly un- 
 exceptionable. 
 
 The fourth instruction which was given to the jury was in favor of 
 the defendant, now plaintiff in error, and therefore need not be con- 
 sidered. Upon the whole, we think that there is no error in the judg- 
 ment. It is therefore aflflrmed, with costs. 
 
 Judgment affirmed. 
 
 7. the same subject. 
 Curtis v. Rochester and Syracuse Railroad Company.* 
 
 Coui't of Appeals of New York, 1859. 
 
 Hon. Alexander S. Johnson, Chief Justice. 
 
 ♦• George F. Comstock, 1 
 
 " Samuel L. Selden, |- Judges. 
 
 ** Hiram Denio, J 
 
 " Selah B. Strong, 
 
 " Cornelius L. Allen, 
 
 " Hiram Gray, 
 
 *« Martln Grover, 
 
 Justices of the Supreme Court, 
 mid ex-officio Judges of the 
 Court of Appeals. 
 
 Presumption of Neglig-ence from the happening: of the Accident. — The mere 
 
 fact that an accident happens to the passenger while in the carrier's vehicle making 
 the transit, without more, will not be prima, facie evidence of negligence to charge 
 the carrier; for, notwithstanding such evidence, the wi-ong which produced the acci- 
 dent may be imputable to a stranger, for whose conduct the carrier is in no wise 
 responsible. 
 
 Continued — Pailure of Carrier's Means of Transportation. — But where the acci- 
 dent is of such a nature that it appears that the wrong or negligence which produced 
 it was the wrong or negligence of the carrier himself, or of some person for whose 
 conduct in the premises tlie carrier is responsible, then proof of the accident wUl 
 raise a presumption of negligence against the carrier. And this is the case where the 
 
 • Reported, IS N. Y. 534.
 
 PRESUMPTION FROM FACT OF ACCIDENT. 189 
 
 Court of Appeals of New York. 
 
 accident happens in consequence of the breaking, giving way, or failure of some of the 
 carrier's means of transportation. 
 
 3. Illustration — Case in Judgment. — When, therefore, a passenger on a railway train 
 
 was injured in consequence of the train running off the track at a switch, and the 
 evidence left it uncertain whether the accident happened in consequence of the switch 
 giving way, or in consequence of a spreading and breaking of the rails, it was held not 
 error for the judge to tell the jury " that the fact of this accident occurring was of itself 
 presumptive evidence of negligence on the part of the defendants." 
 
 4. Measure of Damag-es — Future Pain and Suffering. — The damages recoverable 
 
 for bodily pain and suffering by a person injured by the negligence of another are not 
 limited to the suffering experienced before the trial, but extend to such future suffer- 
 ing as will probably result from the injury. 
 
 Action for damages received by a passenger on the defendant's rail- 
 road from the negligence of its servants. On the trial before Mr. 
 Justice Johnson, at the Ca3aiga Circuit, the evidence was that the train 
 containing the plaintiff ran off the track at Waterloo, at a switch. The 
 proof left it uncertain whether the switch was deranged, or the accident 
 resulted from the spreading and breaking of the rails. There was no 
 evidence that there was any visible defect in the apparatus prior to the 
 accident. The plaintiff's ankle was wrenched and her leg bruised. A 
 running sore or ulcer succeeded upon the bruised place, which continued 
 running, down to the time of the trial, nearly two years after the acci- 
 dent. There was considerable medical testimony in respect to the 
 probability of the sore being healed at some future time, and as to the 
 continued effect of the plaintiff's injuries in causing bodily pain and 
 affecting her general health. The only exceptions were to the charge, 
 and are sufficiently stated in the following opinions. The plaintiff had 
 a verdict and judgment, which having been affirmed upon appeal at 
 General Term, the defendant appealed to this court. , 
 
 Alonzo G. Paige, for the appellant ; George Rathbun, for the respon- 
 dent. 
 
 Selden, J. — The judge charged the jury in this case " that the fact 
 of this accident occuiTJng was of itself presumptive evidence of negli- 
 •gence on the part of the defendant*" If by this the judge is to be 
 understood as saying that, in cases of this kind, evidence of the mere 
 happening of an accident, resulting in injury to the plaintiff, without 
 proof of any of the circumstances under which it occurred, establishes 
 prima facie the charge of negligence, I am not prepared to assent to 
 the proposition. Carriers of passengers are not insurers ; and many 
 injuries may occur to those they transport for which they are not 
 responsible. Tliey are, for oV)vious reasons, held bound to exert the 
 utmost care nnd vigilance to secure the safety of the passengers; and 
 are responsible for the slightest negligence.
 
 190 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Curtis V. Rochester and Syracuse Railroad Company. 
 
 But injuries may often happen through the fault or misconduct of 
 those whose acts are in no way chargeable to them. In travelling in 
 stage-coaches, upon ordinary roads, such injuries would be very fre- 
 quent, because, in such cases, the proprietors of the coach do not 
 construct the roads, nor control those who travel upon them. For a 
 large portion of the accidents, therefore, which result from defects in 
 the road or collisions with other vehicles, the proprietors would not be 
 liable. 
 
 The carrier, however, is in all cases bound to provide a safe and 
 secure carriage for the transportation of the passengers ; and nothing 
 can exempt him from this responsibility'^ but the existence of some latent 
 defect which no reasonable degree of human skill and foresight could 
 guard against ; and this obligation extends to every species of appliance 
 belonging to the carrier and used by him in the business in which he is 
 engaged. Consequently, whenever it appeal's that the accident occurred 
 through some defect in the vehicle or other apparatus used by the car- 
 rier, a strong presumption of negligence arises, founded upon the im- 
 probability of the existence of any defect which extreme vigilance, 
 aided by science and skill, could not have detected. 
 
 The cases in which the carriers would be exempt from responsibility 
 would be far less frequent where the transportation is upon railroads than 
 where it is upon common roads, because railroad companies have the en- 
 tire control of the track and of all engaged in its use. Still, accidents 
 may occur from a multitude of causes, even upon a railroad, for which 
 the company is not responsible. If obstructions are placed by strangers 
 upon the road, either through accident or design, the company is not 
 responsible for th^ consequences, unless its agents have been remiss in 
 not discovering them. The straying of cattle or horses upon the roads 
 causes numerous accidents which are not chargeable to the company. 
 If a drunken man falls asleep, or a deaf man incautiously walks upon 
 the road, in consequence of which a train is unavoidably thrown from 
 the track and a passenger is injured, he is without redress as against 
 the company. So if a careless driver, in crossing a track, fails to get 
 his vehicle out of the waj' of an approaching train. How then can it 
 be assumed, without proof of any sort, when an accident has occurred, 
 that it was caused by some carelessness on the part of the agents of the 
 company, and not by an}' or either of these numerous causes ? 
 
 In regard to the carriages and other apparatus used for the carrying of 
 passengers, railroad companies are under the same obligation as that 
 ah'ead}' alluded to in tlie case of the carrier upon common roads. The}' 
 make and own their road, and have the exclusive control of that and of
 
 PRESUMPTIOX FliOM FACT OF ACCIDENT. 191 
 
 Court of Appeals of New York. 
 
 every part of the machinery and apparatus used in connection with it. 
 Passengers have no means of knowing nor any power of remedying its 
 <lefects, but are forced to trust their lives and persons to the care and 
 watchfuhiess of the agents of the company. The latter, therefore, is 
 bound to see that the road and all its appurtenances are in perfect order 
 and free from any defect which the utmost vigilance, aided by the 
 higliest degree of knowledge and skill, could discover or prevent. 
 
 Consequently, whenever it appears that the accident was caused by 
 any deficiency in the road itself, the cars, or any portion of the appa- 
 ratus belonging to the company and used in connection with its business, 
 a presumption of negligence on the part of those whose duty it was to 
 see that every thing was in order immediately arises, it being extremely 
 unlikely that any defect should exist of so hidden a nature that no 
 degree of skill or care could have foreseen or discovered it. 
 
 If it be said that upon the same principle upon which negligence is 
 presumed in such a case it should be presumed in every case, on 
 account of the high degree of improbability that a serious accident of 
 anj' kind should occur without some degree of negligence, the answer 
 is plain ; and to present this distinction is the object of most that has 
 been said. There may be a presumption of negligence in every case ; 
 but where nothing is known in regard to the cause of the accident, the 
 negligence may as well have been that of some one residing in the 
 vicinity of the road, or of some stranger, of whom numbers come in 
 contact with it every day, as of any of the employees of the com- 
 pany ; while if it appears that the mischief has resulted from a defect 
 in some part of the apparatus of the company, the negligence, if any, 
 must have been that of some one for whose acts and omissions the 
 company is liable, it being well settled that the carrier is responsible 
 for the negligence or want of skill of every one who has been con- 
 cerned in the manufacture of any portion of its apparatus.^ 
 
 The cases in which it has been said that a presumption of negligence 
 arises from the mere proof that an accident has occurred will appear, 
 if examined, not to conflict materially with these principles ; and some 
 of them are, 1 think, illustrative of the distinction just suggested. 
 The leading cases on the subject are those of Christie v. Griggs,^ Stokes 
 v. Sallomtall,^ Carpue v. London and Brighton Railway Company,^ 
 and Laing v. Colder.^ 
 
 In Christie v. Griggs, where Sir James Mansfield is supposed to have 
 
 1 Hegeman v. "Western R. Co., 13 N. Y. 9, "2 Camp. T9, ante, p. 181. 
 
 ante, p. 160; Ware v. Gay, 11 Pick. lOG; In- ' 13 Pet. 192, ante, p. 183. 
 
 galls V. Bills, 9 Mete. 1, ante, p. Ui. < 6 Q. 13. 747. ^ 8 Pa. St. 479.
 
 192 LIABILITY OF THE CAKRIEK FOK ISEGLIGEXCE. 
 
 Curtis V. Rochester and Syracuse Railroad Company. 
 
 laid down the proposition in question, it was proved that the injury 
 was caused by the breaking of the axletree of the coach, upon the top 
 of which the plaintiff was seated ; and it was in view of this proof that 
 the Chief Justice made the remark that "the plaintiff had made a 
 prima facie case by proving his going on the coach, the accident, 
 and the damage he had suffered." There is no doubt that in such a 
 case negligence should be presumed, for the reasons which have been 
 given. 
 
 In the case of Stokes v. Saltonstall, which was also an action against 
 the proprietors of a line of stage-coaches, the court instructed the jury 
 that the "facts that the carriage was upset and the plaintiff's wife 
 injured were prima facie evidence that there was carelessness, or negli- 
 gence, or want of skill, on the part of the drivei' ; and threw upon the 
 defendant the burden of proving that the accident was not occasioned 
 by the driver's fault." Taken abstractly, this instruction, which was 
 sustained by the court, might seem to be in conflict with the principles 
 here contended for; but if understood in reference to the proof, it 
 is otherwise. The plaintiff has proved not only the accident and the 
 injury, but that the passengers had remarked that the driver appeared 
 intoxicated, and so told the agent of the proprietors ; that the road was 
 perfectly level, and not dangerous or difficult; and that the reckless 
 <onduct of the driver had called out repeated remonstrances from the 
 l)assengers, which were wholly unattended to. Here was ample proof 
 of negligence, and the judge must have had these circumstances in 
 view when he made his remarks to the jury. The happening of the 
 accident, under the circumstances proved, was undoubtedly prima facie 
 i^vidence of negligence. 
 
 The other two cases were actions for injuries upon railroads. In 
 cliat of Carpue v. London and Brighton Railway Company, it appeared 
 that the position of the rails had been somewhat deranged at the spot 
 where the injury' took place ; and the Chief Justice charged the jury 
 that it having been shown that the exclusive management both of the 
 inachiner}' and the railway was in the hands of the defendants, it was 
 presumable that the accident arose from their want of care, unless they 
 '^ave some explanation of the cause by which it was produced. This 
 is in perfect accordance with the principles which have been hert 
 :idvanced. 
 
 Laing v. Colder is perhaps the strongest case in support of the 
 doctrine against which we contend. When tlmt case was heard in 
 banco. Bell, J . said, "the m/'re happening of an injurious accident 
 raises, prima facie, a prosumpiion of neglect, and throws upon the
 
 PRESUMPTION FROM FACT OF ACCIDENT. 193 
 
 Court of Appeals of New York. 
 
 carrier the onus of showing it did not exist." But the charge of the 
 judge at the circuit upon which the question arose was not so broad. 
 He instructed the jury that "in the present case the presumption was 
 there had been negligence," — a charge fully justified by the proof, 
 which was that the accident occurred while the car was crossing a bridge, 
 which was so narrow that the plaintiff's hand, lying outside the car- 
 window, was caught by the bridge and his arm broken. It was palpable 
 negligence on the part of the company so to construct the bridge. 
 
 In no instance that I am aware of has it been said by any judge that 
 negligence, on the part of the carrier, was to be presumed from the mere 
 happening of an accident, except where the facts proved in the particu- 
 lar case fully warranted the presumption upon the principles here in- 
 sisted upon. 
 
 The views here presented are, I think, sustained by the opinion of 
 this court in the case of Holhrook v. Utica and Schenectady Railroad 
 Company.^ Ruggles, J., there says: "In actions like the present, the 
 burden of proving that the injury complained of was caused by the 
 defendant's negligence lies on the plaintiff. The same rule applies as 
 in an action for an injur}' to a passenger in a stage-coach. It generally 
 happens, however, in cases of this nature, that the same evidence whicli 
 proves the injury done proves also the defendant's neghgence, or shows 
 circumstances from which strong presumptions of negligence arise, and 
 which cast on the defendant the burden of disproving it. For example, 
 a passenger's leg is broken while on his passage in a railroad car. This 
 mere fact is no evidence of negligence on the part of the carrier until 
 something further be shown." 
 
 It does not follow from what has been said that the judgment in this 
 case is to be reversed for error in that part of the charge referred to. 
 The very witness called by the plaintiff upon the trial proved enough of 
 the circumstances of the case to warrant the presumption of neghgence. 
 It was clear from his testimony that the accident was caused by some 
 defect in the track, and in all probability by the misplacement of the 
 switch. It was immaterial, however, whether it was this, or the sj read- 
 ing of the rails, as the company soug'.it upon cross-examination to show, 
 which threw the train from the track. In either case the presumption of 
 negligence would arise. Tiie judge was fully warranted in instructing 
 the jury that the occurrence of the accident, under the circumstances 
 disclosed by the evidence, authorized the presumption of negligence. 
 
 1 12 N. V. 2.36.
 
 194 LIABILITY OF THE CAKRIER FOR NEGLIGENCE. 
 
 Curtis V. Rochester and Syracuse Railroad Company. 
 
 Did he do more than this? He did not say to the jury, in the language 
 of Judge Bell in Laing v. Colder, that " the mere happening of an 
 injurious accident" raises a presumption of negUgence ; but his words 
 were tliat "the fact of this accident occurring" was presumptive evi- 
 dence, etc. The effect is attributed, not to any and every accident, but 
 to this particular accident. A verdict like this, sustained as it is by 
 ample evidence, ought not to be disturbed by a construction which 
 would make the charge a mere abstraction, not called for by the exi- 
 gencies of the case, provided any other interpretation is admissible. 
 There is no reason to suppose that the jury were misled. The}' were 
 carefully instructed that if the injury was the result of pure accident, 
 without any neglect of the defendants, the plaintiff could not recover ; 
 and under the view which has been taken, the charge, so far as the 
 exception under consideration is concerted, may, I think, be properly 
 sustained. 
 
 A question also arises upon that part of the charge in which the jury 
 were told that in estimating the damages they would be justified in 
 taking into consideration "the bodih' pain and suffering which the 
 plaintiff suffered, or was likely to suffer, in consequence of the neglect 
 of the defendants." This instruction, in so far as it relates to future 
 pain and suffering, is clearly erroneous ; and if it had not been sub- 
 sequently modified, the error would, I think, have been necessarily fatal 
 to the judgment. There is no doubt that bodily pain and suffering is a 
 proper item of damages in such cases. ^ Nor. is the estimate necessarily 
 limited to suffering which is past, where the proof renders it reasonably 
 certain that future pain and suffering is inevitable. In estimating the 
 pecuniary loss in such cases, all the consequences of the injury, future 
 as well as past, are to be taken into consideration ; and there seems to 
 be no reason why a different rule should prevail in respect to bodily 
 pain and suffering. But the objection to the charge is that it author- 
 izes an allowance of damages for future pain which is rendered probable 
 merely. Damages are to be proved, and none can be allowed except 
 such as are shown by the proof to be, at least to a reasonalile degree, 
 certain. The error, however, was corrected upon the trial. The judge, 
 upon his attention being called to the point, further instructed the jury 
 ihat "future damages could only be awarded when it is rendered reason- 
 ably certain, from the evidence, that such damages will inevitably and 
 necessarily result from the original injury." With this qualification, 
 
 1 Ransom v. New York etc. R. Co., 15 N. Y. 416.
 
 PRESUMPTION FllOM FACT OF ACCIDEKT. 195 
 
 Court of Appeals of New York. 
 
 I see no objection to the charge on this subject, and this exception also 
 should therefore be overruled. 
 
 The judgment should, I think, be affirmed. 
 
 Grover, J. — August 7, 1852, the plaintiff took passage in the de- 
 fendants' cars at Geneva for Auburn. As the train was passing Waterloo. 
 it ran off the track, and the plaintiff was injured. The court, among 
 other things, charged the jury that the fact of this accident occurring 
 was of itself presumptive evidence of negligence on the part of the 
 defendants, and it lay with them to explain it and to prove that they were 
 not negligent, in order to discharge them from liabilitj' to the plaintiff ; 
 to which the defendants excepted. The plaintiff was bound to prove 
 her cause of action. That was that she had received an injury caused 
 by the negligence of the defendants. The negligence of the defendants 
 must be proved by the plaintiff, as well as the reception of the injury. 
 It was not enough for her to prove that while a passenger upon the 
 defendants' cars she was injured. In this case, proof was given that the 
 cars ran off the track, and that this occasioned the injury. It was in 
 reference to this evidence that the judge charged the jury that the fact 
 of this accident occurring was presumptive evidence of negligence on 
 the part of the defendants. The question is, whether the plaintiff was 
 liound to go further, and show the particular cause of the cars being 
 thrown from the track, or whether it was for the defendants to show 
 that it was accidental, and without neglect upon their part. This 
 question may be determined upon principles applicable to all modes 
 of carr3dng passengers. It is the duty of all engaged in this busi- 
 ness, in any mode, to use care to secure the safety of the passenger, 
 proportioned to the danger incident to the mode of conveyance. In 
 case this care is applied, as a general result the safety of the passenger 
 will be secured, so far as that safety depends upon the state or 
 condition of any of the means provided by the carrier and used in the 
 business ; if there is no imperfection in any of these, and suitable cau- 
 tion is employed by those engaged their application, every thing depend- 
 ent thereon will accomplish the end in view. This is as certain as the 
 laws of mechanics. When, therefore, an injury is received from a 
 derangement of any thing employed by the carrier, the presumption 
 necessarily arises that there existed somewhere an imperfection in the 
 machinery employed, or negligence in its appUcation. It is the duty of 
 the carrier to provide perfect machinery, and if he has failed in this, it 
 devolves upon him to show the excuse, if any. This is the rule appli- 
 cable to all cases where a party seeks exoneration from a duty imposed 
 upon him by law or incurred by contract. The plaintiff has established
 
 196 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Curtis V. Rochester and SjTacuse Railroad Company. 
 
 his cause of action when he has shown a failure to perform the dut}-, 
 from which he has sustained an injury. It is for the defendant, then, to 
 show the facts relieving him from responsibility in the particular case. 
 This imposes no hardship upon the defendant in this class of cases. 
 The whole management is exclusively under his control. He has ample 
 means to show the true cause of the difficulty. The plaintiff know^; 
 nothing about it. He takes passage with the carrier, who, instead of 
 conveying him safely, inflicts an injury upon him by the failure of some 
 part of the machinery employed by him. In many cases, it would bo 
 impossible for the plaintiff to ascertain the particular defect, and I think 
 no such obligation is imposed upon him b}^ the rules of evidence. The 
 authorities are uniform in favor of the rule held bj^ the judge. ^ The 
 same rule is laid down by the elementary writers. ^ The defendants' 
 counsel cites the case of Holbrook v. Uiica, etc. Railroad Company ^ in 
 opposition to the rule. I understand that case as substantially sus- 
 taining the rule as laid down by the judge in his charge in this case. 
 RuGGLES, J., says that if the witness who swears to the injury testifies 
 also that it was caused by a crush in a collision with another train of 
 cars belonging to the same carriers, the presumption of negligence im- 
 mediately arises. Just so when it is proved that the injurj^ arose from 
 any derangement, crush, or displacement of the track or cars. 
 
 The exception to that portion of the charge holding that the plaintiff 
 could recover a compensation for bodily pain suffered, or that she was 
 likely to suffer, is general ; and it is settled that such an exception is 
 unavailing when any portion of the charge thus excepted to is correct. 
 In Ransom v. New York and Erie Raihvay Company,'^ it was decided 
 bj^ this court that bodily pain and suffering arising from an injury was 
 a proper subject for pecuniary compensation. This exception does not 
 render it necessaiy to examine that portion of the charge holding that 
 the plaintiff could recover for pain and suffering likely to be suffered. 
 In this case, the judge, I think, laid down the true rule, in substance, in 
 regard to future pain and suffering, in another portion of his charge : 
 that the plaintiff could only recover damages for such pain and suffer- 
 ing as the evidence rendered reasonably certain would necessarily result 
 from the injury. But, as remarked above, the exception is too general 
 to present any question as to future pain. 
 
 The judge was correct in refusing to charge the jury, as requested. 
 
 1 stokes y. Saltonstall, 13 Pet. 181, an<e, p. etc. R. Co., IG Barb. 113, and cases there 
 
 183 ; Carpue v. London etc. R. Co., 5 Q. B. 747 ; cited. 
 
 8.c.Dav.&M.608;3Eng. Rail. Cas. 6;)2;8 Jur. 2 Ang. on Car., § 569; 2Greenl. on. Ev.2-2-2. 
 
 404; 13 L. J. (Q. B.) 133; Holbrook r. Ttica 3 12 N. Y. 23G. < 15 X. Y. 415.
 
 GENERAL DOCTRINES. 197 
 
 Grounds on which Liability arises. 
 
 that the uncontradicted proof shows that the switch was rightly placed 
 for the train in which the plaintiff was a passenger, and awaiting its 
 approach, and that this rebutted any presumption of negligence arising 
 from the accident. There was evidence tending to show that the train 
 ran off the track at the point of approach to the switch. This was evi- 
 dence tending to show that the switch was improperly placed, and proper 
 for the consideration of the jury upon that question. The judgment 
 should be affirmed. 
 
 Denio and Comstock, JJ., did not sit in the case ; all the other judges 
 concurring. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 I. General Doctrines. 
 
 § 1 . Grounds on whicli this Liability rests. — The carrier is under a duty to 
 carry the passenger safely, so far as human care, foresight, and skill will enable 
 him to do it. This duty, it is said, exists independently of contract, and 
 although there is no contract in a legal sense between the parties. Whether 
 there is a contract to carry, or the senice undertaken is gratuitous, an action lies 
 against the carrier for a negligent injury to the passenger. ^ The law raises the 
 duty out of regard for human life, and for the purpose of securing the utmost 
 vigilance by carriers in protecting those who have committed themselves to their 
 hands. The liability of the carrier is the same whether the action is brought 
 upon the contract or upon the duty, and the evidence requisite to sustain the 
 action in either form is substantially the same ; and when there is an actual con- 
 tract to carry, it is properly said that the liability in an action founded upon the 
 public duty is coextensive with the contract. '■' 
 
 Whenever the relation of carrier and passenger exists as defined in the pre- 
 ceding chapter,^ the law steps in and determines the measure of the carrier's 
 duty, according to the circumstances attending this relation. We apprehend 
 that the measure of the carrier's duty is the same in all cases where the relation 
 is voluntarily assumed, whether for reward or gratuitously. But where the 
 relation is not voluntarily assumed, — as, where the person injured is a tres- 
 passer upon the vehicle of the carrier, — it is obvious that the measure of the 
 carrier's liability is different. Towards such a person he is not responsible for 
 that high degree of care exacted towards other passengers ; and in the view of 
 some courts, he is responsible only for a wanton injury. How far this liability 
 which the law attaches to the office of a public carrier jp subject to be limited by 
 express contract, is considered in a future chapter. 
 
 1 Phila. etc. R. Co. v. Derby, ante, p. 31 ; - Carroll v. Sl.aten Island R. Co., 58 N. Y. 
 
 Str. New VVoi-lil v. King, ante, p. 175. 126. ' Ante, Chap. IV.
 
 198 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 § 2. Overruled Cases holding Carriers ol Passengers liable as Insurers. — 
 Two or three old cases give couuteuance to the idea that a common carrier of 
 passengers is liable as an insurer of their safe carriage. Thus, in Bremner v. Wil- 
 liams,^ Best, C. J., said, "I consider that every coach proprietor warrants that 
 his stage-coach is equal to the journey he undertakes." But, he continued 
 " the counts go on to charge negligence, and the case may be decided upon that 
 ground also;" and, upon examination of the facts proved, he held that there 
 was evidence of negligence to support the verdict which the jury had rendered 
 for the plaintiff. 
 
 In Sharp v. Grey,^ an axletree of defendant's coach broke on the journey, injur- 
 ing the plaintiff, who was a passenger. It appeared that the axletree was an iron 
 bar, which, excepting the arms projecting into the wheels, was enclosed in a 
 frame of wood consisting of four pieces bound together by clamps of iron. The 
 clamps were fastened with screws. Before the journey, the defendant's servant 
 had examined this part of the vehicle in the usual way, when no defect was 
 obvious to the sight ; but upon investigation after the accident, a defect was 
 discovered in that portion of the iron bar embedded in the wood-work, which 
 could only be examined by unscrewing the iron clamps and taking off the wooden 
 frame. A mail-contractor testified that it was not usual, previous to journeys, 
 to examine the iron of the axletree by opening the wooden frame, and that such 
 a practice would be productive rather of insecurity than of safety. The maker 
 of the defendant's coach swore that the whole vehicle had been made of the best 
 materials; that the coach was not new, but that the iron of the axletree was ren- 
 dered more tough by use, and was less liable to accident after wear than at first 
 starting. On this evidence, it was contended that there had been no want of due 
 care on the part of the defendant, and that the plaintiff's calamity was the result 
 of inevitable accident, for which the defendant was not responsible. Tindal, C. 
 J., directed the jury to consider whether there had been on the part of the defend- 
 ant that degree of vigilance which was required by his engagement to carry the plaintiff 
 safely. The jury having found for the plaintiff with £500 damages, Andreics, 
 serjt., moved to set aside the verdict, on the ground that the defendant had 
 conducted his business with all the caution that could be reasonably required, 
 that the jury had been misdirected, and that the verdict was against the evidence. 
 He contended that a carrier of goods undertakes to deliver at all hazards, but 
 that a carrier of passengers is not responsible for accidents which happen in 
 spite of every precaution. "In Christie v. Gnggs,^''^ said he, "it was held that 
 the proprietor of a stage-coach was not answerable for any damages that might 
 happen to a passenger from the coach being overturned by a mei'e accident. 
 The learned judges then delivered the following opinions : — 
 
 "Park, J. — I am of opinion that no rule ought to be granted. This was 
 entirely a question of fact, and the damages are not excessive. It is clear that 
 there was a defect in the axletree; and it was for the jury to say whether the 
 accident was occasioned by what, in law, is called negligence in the defendant, or 
 not. The Chief Justice expresses no dissatisfaction at the verdict, and it 
 ought not to be disturbed? 
 
 " Gaselee, J. — I am of the same opinion. The burden lay on the defendant to 
 
 1 1 Car. & P. 414. » 9 Bing. 457; s. c. 2 Moo. & Scott, 621. s 2 Camp. 79, ante, p. 181.
 
 GENERAL DOCTKINES. 199 
 
 Not Insurers, but liable for Negligence. 
 
 show there had been no defect in the construction of the coach. Whether there 
 had been or not, was a question of fact, on which the jury have determined. In 
 Christie v. Griggs, the accident was occasioned by a kennel which crossed the 
 road, and not by any defect in the vehicle. 
 
 "BosANQUET, J. — I am of opinion that no rule should be granted to disturb 
 this verdict. The Chief Justice held that the defendant was bound to provide 
 a safe vehicle, and the accident happened from a defect in the axletree. If so, 
 when the coach started it was not roadworthy, and the defendant is liable for the 
 consequence upon the same principle as a ship-owner who furnishes a vessel 
 which is not seaworthy. 
 
 "Alderson, J. — I am of the same opinion. A coach proprietor 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. The 
 injury in the present case appears to have been occasioned by an original defect 
 of construction ; and if the defendant were not responsible, a coach proprietor 
 might buy ill-constructed or unsafe vehicles and his passengers be without 
 remedy." ^ 
 
 It is perfectly obvious that this case is no authority for the position that the 
 liability of a carrier of passengers is that of an insurer of the safety of his 
 vehicles. But it was erroneously quoted as so holding by the Court of Appeals 
 of New York, in 1862. And that court accordingly laid down the rule that a 
 common carrier of passengers is bound absolutely, and irrespective of negligence, 
 to furnish a roadworthy vehicle ; and the conclusion was that the railroad com- 
 pany was liable for injuries to a passenger caused by a crack in the iron axle of 
 the car, although the defect could not have been discovered by any practicable 
 mode of examination.- This case, however, so far as it declares this rule, is 
 overruled by subsequent cases in the same court.^ 
 
 § 3. Such Carriers not Warrantors of their Vehicles and Roads, but liabla 
 only for Negligence. — The rule laid down in the last cited case is not the law 
 either in Great Britain or the United States. The settled law is that a common 
 carrier does not warrant the safety of his vehicles and road against all accidents 
 and contingencies, but is liable only for negligence.* This being the case, the 
 
 1 Sharp V. Grey, 9 Bing. 457; s. c. 2 Moo. London etc. R. Co., 2 Fost. & Fin. 730; 
 
 & Scott, 621. Israel v. Clark, 4 Esp. 259; Burns v. Cork 
 
 8 Alden v. N. York etc. R. Co., 26 N. Y. 102. etc. R. Co., Irish Rep. 13 C. L.JN. S.) 543 ; Pym 
 
 s Carroll v. Stateu Island R. Co., 58 N. Y. v. Great Northern R. Co., 2 Fost. & Fin. 619, 
 
 Rep. 13 C. L.JN. S.) f 
 3rn R. Co., 2 Fost. & 
 
 126, 138, 139; McPadden v. New York etc. R. 621; Maury r. Talmadge, 3 McLean, 157; Car- 
 Co., 44 N. Y. 478; Caldwell v. New Jersey roll v. Staten Island R. Co., 58 N. Y. 126; 
 Steamboat Co., 47 N. Y. 290; Crogan v. New Crogan v. New York etc. R. Co., 18 Alb. L. J. 
 York etc. R. Co., 18 Alb. L. J. 70. 70; Sullivan v. Phila. etc. R. Co., 30 Pa. St. 
 4 Readhead v. Midland R. Co., ante, p. 124; 234; Meier v. Pennsylvania R. Co., 64 Pa. St. 
 Ingalls V. Bills, ante, p. 112; Christie v. 225; Stockton v. Frey, 4 Gill, 406; Frink v. 
 Griggs, ante, p. IS\; Aston tJ. Heaven, 2 Esp. Potter, 17 111. 40(>; Jeffersonville R. Co. v. 
 533; Crofts v. Waterhouse, 3 Bing. 319; «. c. Hendricks, 26 Ind. 228, 231 ; Fairchild v. Cal- 
 11 J. B. Moo. 133; Curtis v. Drinkwater, 2 ifornla Stage Co., 13 Cal. 599; McClary v. 
 i;arn. & Adol. 169; Boyce -j. Anderson, 2 Pet. Siou-x City etc. R. Co., 3 Neb. 45; Sawyer v. 
 150; McKinney v. Neil, 1 McLean, 540; Hannibal etc. R. Co., 37 Mo. 240,260. And 
 McPadden v. New York etc. R. Co., 44 see Keith v. Pinkham, 43 Me. 501; Whites. 
 N. Y. 478 (reversing 47 Barb. 247) ; Ford v. Boultou, 1 Peake, 113.
 
 200 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 general rules which obtain in the law of negligence come into effect, except so 
 fai" as they are modified by the circumstance that the carrier is responsible for 
 an extraordinary degree of care : the negligence of tlie carrier must have been 
 a proximate or juridical cause of the injury, — or, to borrow an expression 
 coined by Lord Cairns, it must have been incuria dans locum injurice ; ^ and the 
 passenger himself must not have been guilty of contributory negligence.^ 
 
 §4. Bound to use Extraordinary Care. — (1.) General Expressions of the 
 Doctrine. — It is frequently said by the courts that such carriers are bound to 
 exercise extraordinary care and skill to secure the safety of their passengers. 
 This doctrine will be found in various cases, embodied in such expressions as 
 these: "The utmost degree of care and skill in the preparation and management 
 of the means of conveyance ; " ^ " all precautions, as far as human foresight will 
 go." * Another eminent court has sanctioned an instruction which told the jury 
 that a common carrier of passengers is bound to use greater than ordinary care, — 
 such care as is used by very cautious persons ; and if any reasonable skill on his 
 part could have prevented the accident, the defendant is liable."' "Every per- 
 son who contracts for the conveyance of others is bound to the utmost care and 
 skill; and if through any erroneous judgment on his part any mischief is occa- 
 sioned, he must answer the consequences."^ "Carriers of passengers for hire 
 are bound to exert the utmost skill and prudence in conveying their passengers, 
 and are responsible for the slightest negligence, or want of skill, either in them- 
 selves or their servants. They are bound to use such care and diligence as the 
 most careful and vigilant man would observe in the exercise of the utmost 
 prudence and foresight." This language, used in charging a jury, is held well 
 sustained by the authorities.^ "A carrier of either goods or passengers is 
 bound to provide a carriage or vehicle perfect in all its parts, in default of which 
 he becomes responsible for any loss or injury that may be suffered, provided it 
 happened without negligence or misconduct on the part of the party injured. A 
 carrier of passengers is bound to omit no precaution that may conduce to their 
 safety. He is bound to guard beforehand against every apparent danger that 
 may beset them." ^ 
 
 (2.) Expressions in Railway Cases. — " The law, in tenderness to human life 
 and limb, holds railroad companies liable for the slightest negligence, and 
 compels them to repel by satisfactory proofs every imputation of such negli- 
 gence."* "When carriers undertake to convey passengers by the powerful and 
 dangerous agejicy of steam, public policy and safety require that they be held to 
 the greatest possible care and diligence." i" Such carriers are bound to carry 
 safely those whom they take into their carriages, as far as human foresight and 
 care will go, and are bound "to use the utmost care and diligence of very 
 
 1 Metropolitan R. Co. v. Jackson, 3 App. « Lord Ellenborough, in Jackson v. Tol- 
 
 Cas. 193, 198. lett, 2 Stark. 37; s. c. 3 Eng. Com. Law, 233. 
 
 - See the next chapter. ^ Sales v. Western Stage Co., 4 Iowa, 547. 
 
 3 Ang. on Car., § 523; Gardiner, J., in s Gibson, C. J., to the jury in Xew Jersey 
 
 liegeman t?. Western B. Corp., 13 N. Y. 9, 24, R. Co. v. Kennard, 21 Pa. St. 203, 204; ap- 
 
 aute, p. 169. proved by the Supreme Court, 21 Pa. St. 209. 
 
 < 2 Kent's Comm. 602; Gardiner, J., ut » Staples, J., in Baltimore etc. II. Co. r. 
 
 sujira. 6 Edwards v. Lord, 49 Me. 279. Wightman, 29 Gratt. 431, 445. i" Ibid.
 
 GENERAL DOCTRINES. 201 
 
 Bound to Extraordinary Care. 
 
 cautious persons." • They are "bound to the most exact care and diligence, 
 not only in the management of the train and cars, but also in the structure and 
 care of the track, and in all the subsidiary arrangements necessary to the safety 
 of passengers." 2 They are " bound to exercise all the care and skill which 
 human foresight and diligence can suggest." ^ *" As far as human care and fore- 
 sight will go,' has become almost a familiar form of expi-ession in stating the 
 rule of duty."* "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 in all the subsidiary arrangements necessary to the safety of 
 passengers." » An instruction that "if the defendant could have prevented the 
 accident by the utmost human sagacity and foresight with respect to their track, 
 then the defendant is liable," has been held to be established law; and it was 
 held no error to refuse to charge " that the utmost human sagacity required of the 
 defendant did not require of the defendant to take such extraordinary measures 
 in constructing, operating, and maintaining its railroad as are not and have not 
 been in use in the constructing, operating, and maintaining of railroads." * 
 
 "When carriers undertake to convey persons by the powerful but dangerous 
 agency of steam, public policy and safety require that they be held to the 
 greatest possible care and diligence. And whether the consideration for such 
 transportation be pecuniary or otherwise, the personal safety of the passengers 
 should not be left to the sport of chance, or the negligence of careless agents. 
 Any negligence, in such cases, may well deserve the epithet of 'gross.' " ' 
 
 It has been held, in a well-considered case in New Hampshire, not error to tell 
 the jury that a railway company, in the carriage of passengers, is bound to use 
 "the utmost care and prudence of a very cautious person." This declaration 
 of law the court found to be not only in accordance with the elementary books, 
 but sustained by the adjudged cases. "It is true," said the court, "that the 
 terms used do not furnish an exact measure of the care required, but that 
 difficulty is inherent in the nature of the subject. It has, however, this advan- 
 tage, that it conforms substantially to the ordinary definition of the highest 
 degree of care required of bailees of goods, and has, therefore, the sanction of 
 long use." 8 
 
 " Railway companies who are carriers of passengers are required to use all the 
 means reasonably in their power to prevent accident. It is not necessary, to 
 charge them with liability, that they be guilty of great negligence. It is enough 
 if the accident was caused solely by any negligence on their part, however slight, 
 if by the exercise of the sti'ictest care or precaution, reasonably within their 
 power, the injury would not have been sustained."* 
 
 "When a railroad company engage in the business of common carriers, [of 
 passengers] they undertake that the road is in good travelling order and fit for 
 
 ' Oliver v. New York etc. R. Co., Edm. Sel. ^ Virginia etc. R. Co. v. Sanger, 15 Gratt. 
 
 Cas. 589. 230, 236. 
 
 2 Shaw, C. J., in McElroy v, Nashua etc. « Union Pac. R. Co. v. Hand, 7 Kan. 380, 392. 
 R Corp., 4 Cush. 400, 402. ' Grier, J., in Phila. etc. R. Co. v. Derby, 
 
 3 Blown V. New York etc. R. Co., 34 N. Y. 14 How. 486, ante, p. 31. 
 
 404, 408 (reversing s. c. 31 Barb. 385). » Taylor v. Grand Trunk R. Co., 48 N. H. 
 
 < Bowen v. New York etc. R. Co., 18 N. Y. 304,318. 
 408, 411. Mr. Justice Davis to the jury in Seymour 
 
 V. Chicago etc. R. Co., 3 Biss. 43.
 
 202 LIALULITV OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes 
 
 use, and that the engines and can-iages employed are roadworthj' and properly 
 constructed, and furnished according to the present state of the art; and if an 
 injury results from the imperfection of the road, the carriages, or the engines, 
 the company are lial^k', unless the imperfection was of a character in no degree 
 attributable to their negligence. They are also bound for a due application, on 
 the part of their servants and agents, of the necessary attention, art, and skill; 
 and if the Injury to the plaintiff might have been avoided by the utmost degree 
 of care and skill on the part of the agents and servants of the company, they are 
 liable." It is also proper to tell a jury that the company will be liable if the 
 injury which happened might have been avoided by the conductor " by the most 
 skilful and prompt use of all the means in his power." i The Supreme Court of 
 Illinois has stated the rule to be, that '• carriers of passengers for hire are bound 
 to use the utmost care and diligence in providing for their safety, by the use of 
 sufficient and suitable modes of conveyance, in order to prevent those injuries 
 which human care and foresight can guard against. Having thus provided the 
 means of transportation, they are in like manner to use the utmost care and 
 diligence in managing, directing, and using those means, so that, as far as human 
 care and foresight can go, they may guard against injury. Having done all that 
 human care and foresight can do, reasonably, an injury happening, they are 
 not liable. Pure accidents will excuse them. They are not liable at all events, 
 and the negligence of the passenger producing the injury, without their fault, 
 will also relieve them from liability. But the magnitude of the value of human 
 life is such that it requires of carriers of passengers this degree of care and fore- 
 sight. * * * When, by the increased facilities for travel, so large a portion of 
 the population of our country are intrusted to the care of carriers of passengers 
 by railroads and steamboats, and accidents are so lamentably frequent, it would 
 not be proper to relax this riile, for upon it depends the safety of the travelling 
 public." ■■' But in a later case, quoted in the next section, these expressions are 
 much moditled. 
 
 In an important case in New Hampshire,' the trial court instructed the jury as 
 follows: "The burden of proof is on the plaintiff to show that the accident 
 occurred under such circumstances that the defendants were liable for the con- 
 sequences. Defendants are not insurers, and are not liable if they have been in 
 no fault, but they are liable for the smallest negligence. They must provide a 
 good track; and if there be the least failure in this, they are answerable for any 
 injury that may happen in consequence. Defendants are bound to use the high- 
 est degree of care which a reasonable man would use. This does not mean the 
 utmost degree of care which the human mind is capable of imagining, or, in 
 other words, that care enough must be taken to render the passengers perfectly 
 safe; such a rule would require so great an expenditure of money, and the 
 emplojTnent of so many hands. Defendants must use such a degree of care as 
 is practicable, short of incurring an expense which would render it altogether 
 Impossible to continue the business. The law does not require such particular 
 precaution as it is apparent, after the accident, might have prevented the injury, 
 but such as would be dictated by the utmost care and prudence of a very cautious 
 
 1 Nashville etc. R. Co. v. Messino, 1 Sneert 2 Chicago etc. R. Co. v. George, 19 111. 510, 
 
 (Tenn.), 220. Opinion of the court by Car- 517. 
 ruthers, J. a Taylor v. Grand Trunk R.Co., 48 N. H. 304.
 
 GENERAL DOCTRINES. 203 
 
 Bound to Extraordinary Care. 
 
 person before the accident, and witliout l?nowledge that it was about to occur. 
 Defendants must use the higliest degree of practicable care and diligence that is 
 consistent with the mode of transportation adopted. They are not obliged to use 
 •every possible preventive that the highest scientific skill might have suggested. 
 It is said that they must use the best precautions in known practical use to 
 -secure safety, the most approved modes of construction and machineiy in 
 known use in the business; but this doctrine must be taken with the qualifica- 
 tion that they are not obliged to introduce improvements if the expense of 
 introducing them is much greater in proportion than the increase of safety 
 thereby attained." 
 
 The Supreme Court thought that the general view of the court below taken in 
 this charge as to the duties and degree of care imposed upon carriers was cor- 
 rect. They are bound to exercise the highest degree of care and diligence in the 
 conduct of their business, and are liable for the smallest negligence. "This 
 measure of care," said the court, " is applicable to carriers of passengers by 
 stage-coaches, where the rate of speed is not much above six miles per hour; 
 and it is very obvious that a higher degree of care and skill is demanded in 
 the transportation of passengers by steam on a railroad, where the speed is so 
 much greater." The court, after reviewing the authorities at length, state that 
 they sustain the general view taken by the judge in his instruction to the jury ; 
 ^'and," continued the court, "the question is whether in the illustrations given 
 there was any thing calculated to mislead them. The objection most urged is 
 the statement that defendants must use such a degree of care as is practicable, 
 short of incurring an expense which would render it altogether impossible to 
 continue business. This is substantially the language of Judge Redfield,^ and 
 is apparently based upon the idea that the rule calling for the utmost degi-ee of 
 care, vigilance, and precaution must be understood not to require such a degree 
 of vigilance as will be wholly inconsistent with the mode of conveyance adopted, 
 and render it impracticable. This is the docti'ine of Tidier v. Talbot,'' where it is 
 also said that this rule does not require the utmost degree of care which the 
 human mind is capable of inventing, as such a rule would involve the expendi- 
 ture of money and the employment of hands so as to render it perfectly safe, and 
 would prevent all persons of ordinary prudence from engaging in that kind of 
 business. But the rule does require that the highest degree of pi-acticable care 
 and diligence should be used that is consistent with the mode of transportation 
 adopted. To the general views thus expressed we perceive no objection. 
 Indeed, it is quite manifest, we think, that in fixing upon the measure of the 
 obligation of common carriers by railway to the travelling public, it is proper to 
 consider how far it is reasonably practicable for them to go, in view of the 
 expenditures that might be required; and, looking at the subject as a whole, 
 we think it could never have been intended to fix upon a measure of care that 
 would render it practically impossible to continue this mode of transportation. 
 
 "At the same time, the standard of care and diligence for a particular railroad 
 cannot be made to depend upon its pecuniary condition or the amount of its 
 earnings; but having undertaken to carry passengers in that mode, its duty is to 
 provide a track, rolling-stock, and all other agencies suited to the nature and 
 
 1 2 Redf. on Rys. (Sd ed.) 187. « 23 111. 357.
 
 204 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 extent of the business it proposes to do, and the measure of its care and dili- 
 gence is not to fluctuate with the changes in its revenues. A direction to the 
 jury, therefore, that should make the degree of care required turn upon the 
 pecuniary means of this particular road would be erroneous. The part of the 
 charge particularly objected to is the direction that ' defendants must use such 
 degree of care as is practicable, short of incurring an expense which would 
 render it altogether impossible to continue the business.' This might, and 
 probably would, be understood to require of the defendants all practicable care 
 to the extent of their means, which would make the ability of the corporation 
 the measure of the care and diligence required ; and that obviously is not the 
 true test, and, judging from other parts of the instructions, it was not so intended. 
 Still, the terms used are so explicit that there is reason to fear that the jury may 
 have been misled, and induced to require as a standard a higher degree of care 
 and diligence than the law actually demands. It would be quite likely to be so 
 if it appeared that the corporation was receiving a large income from this busi- 
 ness beyond the expenses. If, on the other hand, it appeared that the receipts 
 did not equal the running expenses, the jury might feel at liberty to exact a 
 lower degree of care and diligence. 
 
 "In respect to common highways, it has been decided in this State that the 
 standard by which their sufliciency is to be tested is not to be expanded or con- 
 tracted by the wealth or poverty of the town,' and we think the same rule is 
 applicable to the proprietors of railroads. They are bound to keep them in 
 suitable repair, and to operate them with suitable care and diligence, considering 
 the character and extent of the use to which they are applied. As before 
 remarked, the passage under consideration is in terms much like the passage in 
 2 Bedfield on Bailways, 187 ; but upon a close examination of his statement it will 
 not be found that the author intended to announce the doctrine that the degree 
 of diligence was to be measured by the revenues of the particular railroad, but 
 that in fixing a general standard of care and diligence there should not be so 
 much required as to render this mode of conveyance impracticable. 
 
 "The objection to the passage in question now before us is the danger that the 
 jury may have understood that the defendants were bound to use all practicable 
 care and skill to the extent of their means ; and as we do not know that their 
 means were not understood to be ample, we cannot be sure that the jury were 
 not misled. The jury in this case have found that there was gross negligence, 
 and it might, perhaps, be urged that this finding shows that no harm was done 
 by the instructions in question. We think, however, that in determining what 
 was gross negligence the jury would naturally and properly be infiuenced by the 
 degree of care and diligence which they supposed the law required ; and, if that 
 standard was carried too high, they might also come to a wrong conclusion as to 
 what was gross negligence. We therefore are constrained to hold that, in 
 respect to the particular direction under consideration, the charge was 
 erroneous."^ 
 
 (3.) Expressions in Stage-Coach Cases. — "The proprietors of stage-coaches 
 which ply between different places, and carry passengers for hire and compensa- 
 tion, are responsible for all accidents and injuries happening to the persons of 
 
 I Winship v. Enfield, 42 N. H. 197,208. 2 pg,- Bellows, J., 4S N. H. 316, 318.
 
 GENERAL DOCTRINES. 205 
 
 Bound to Extraordinary Care. 
 
 the passengers which could have been prevented by human care and foresight." ^ 
 ''Passenger-carriers are liable for injuries resulting from even the slightest neg- 
 ligence. * * * They are bound to use the utmost care and diligence of cau- 
 tious persons to prevent injury to passengers."* "The carrier cannot be said 
 to have fulfilled the requirements of the law so long as there exists any known 
 want of safety in his coaches, harness, etc., whether arising from defectiveness 
 of materials or workmanship, or faultiness of the principles on which they are 
 constructed, for which there is any known remedy used wisely as a means of 
 safety by others of skill and sound judgment engaged in the same business." ' 
 "While it is true that the proprietors of stage-coaches do not warrant the safety 
 of passengers in the same sense that they warrant the safe carriage of goods, 
 yet they do warrant that safety so far as to covenant for the exercise of extraor- 
 dinary diligence and care to insure it; and they do this as common carriers." * 
 [n Connecticut, the highest degree of care which a reasonable man would use 
 is required.^ " This rule applies alike to the character of the vehicle, the horses, 
 and harness, to the skill and sobriety of the driver, and to the manner of con- 
 ducting the stage under every emergency or difficulty. * * * The stage- 
 ow^ner does not warrant the safety of passengers; yet his undertaking and 
 liability as to them go to this extent: that he or his agent shall possess com- 
 petent skill, and that, as far as human foresight and care can reasonably go, 
 lie will transport thera safely. He is not liable for injuries happening to pas- 
 sengers from sheer accident or misfortune, where there is no negligence or fault, 
 and where no want of caution, foresight, or judgment would prevent the injury. 
 But he is liable for the smallest negligence in himself or his driver." ^ 
 
 (4.) Expressions in Steamboat Cases. — "The carrier of passengers, especially 
 in vehicles and conveyances propelled by steam, where the consequences of an 
 accident from defective machinery are almost certainly fatal to human life, is 
 bound to use every precaution which human skill, care, and foresight can pro- 
 vide, and to exercise similar care and foresight in ascertaining and adopting new 
 improvements to secure additional protection."' "Carriers of passengers are 
 not insurers of the safety of persons Avhom they 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 of the manufacturer of the machinery, or those 
 employed to manage it, contributed." * 
 
 ' This instruction to the jury was held ^ Hall v. Connecticut River Steamboat 
 
 quite as moderate towards the proprietors Co., 13 Conn. 319, 326. 
 
 of stagecoaches as the authorities would « Derwort t). Loomer, 21 Conn. 245, 253. 
 
 justify. Frink v. Coe, 4 G. Greene, 5.55. ' Church, C. J., in Caldwell v. New Jersey 
 
 2 Charge to the jury in Parish v. Reigle, Steamboat Co., 47 N. Y. 282, 288. 
 
 llGratt. 097, 700. Approved by the Supreme " Andrews, J., in Carroll v. Staten Island 
 
 Court, id. 712, 713. R. Co., 58 N. Y. 126, 138. See also Str. New 
 
 3 Id. 717, per Daniel, J. World v. King, ante, p. 175. 
 •• Fairchild v. Cal. Stage Co., 13 Cal. 599.
 
 206 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 § 5. Modified Expressions of this Rule in American Cases, — On the other 
 hand, the carrier is not bound to guard against defects which " nothing short of 
 superhuman prevision could have discovered." ^ "The utmost care and vigi- 
 lance is required on the part of the carrier. This rule does not require the 
 utmost degree of care which the human mind is capable of imagining, but it 
 does require that the highest degree of practicable care and diligence should be 
 adopted that is consistent with the mode of transportation adopted. Railway 
 passenger-carriers are bound to use all reasonable precautions against injury of 
 passengers ; and these precautions are to be measured by those in known use in 
 the same business which have been proved by experience to be efficacious. The 
 company are bound to use the best precautions in known practical use, * * * 
 but not every possible preventive which the highest scientific skill might sug- 
 gest." ^ "The utmost which human knowledge, human skill, and human 
 foresight and care can provide is all that in reason can be required. To 
 ask more, is to prohibit the running of railways, unless they possess a capital 
 and surplus which will enable them to add a new element to their business, — 
 that of insurance. Nor can we carry the requirement beyond the use of known 
 machinery, and modes of using it. Railroads 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 new." ^ 
 
 In the view of the Supreme Court of Illinois, the rule is not, without qualifica- 
 tion, that a railway company employed in transporting passengers must do all 
 that human care and vigilance can do, both in providing safe coaches, machinery, 
 ti-acks, and roadway, and in keeping the same in repair ; but it is that the carrier 
 shall do all that human care, vigilance, and foresight can reasonably do to these 
 ends, consistently with the mode of conveyance and the practicable operation of 
 the road.* Such a rule, it is said, would prevent persons of ordinary prudence 
 from engaging in that character of business.^ 
 
 § 6. The modern English Rule of Reasonable Care. — The modern English 
 rule appears to be that carriers of passengers, even railway companies carry- 
 ing by the agency of steam, " are only bound to the care and caution which 
 may be reasonably expected to be used by reasonable men." The measure of 
 their liability is thus brought down to the standard of ordinary or reasonable 
 care which obtains in other circumstances.* Accordingly we find the rule laid 
 down by the English judges thus : " The contract of the company with the plain- 
 tiff was to carry him with reasonable safety." ' The real question is, whether 
 
 1 Crogan v. New York etc. K. Co., 18 Alb. " Payne v. Great Northern R. Co., 2 Fost. 
 L. J. 70. & Fin. 619, 621 ; Withers v. North Kent R. Co.,. 
 
 2 Charge of Thayer, J., in Meier v. Penn- 27 L. J. (Exch.) 417 ; Bird v. Great Northern 
 sylvauia R. Co., 64 Pa. St. 225, approved by R. Co., 28 L. J. (Exch.) 3. See also Birkett 
 the Supreme Court, and said by Agnew, J., v. Whitehaven etc. R. Co., 4 Hurl. & N. 730; 
 to be a correct summary of the law. «. c. 28 L. J. (Exch.) 348; Wj'born v. Great 
 
 3 Agnew, J., ibid. Northern R. Co., 1 Fost. & Fin. 162 ; and espe- 
 * Pittsburgh etc. R. Co. v. Thompson, 56 cially the late case of Metropolitan R. Co. v. 
 
 lU. 138 ; Tuller v. Talbot, 23 111. 357. Jackson, 3 App. Cas. 193. 
 
 5 Tuller V. Talbot, supra. See, however, ' Brett, J., in Richardson t;. Great Eastern, 
 
 a more stringent doctrine in an earlier case R. Co., L. R. 10 C. P. 490. 
 in the same State, quoted in subsect. 2 of 
 the preceding section.
 
 GENERAL DOCTRINES. 
 
 207 
 
 Rule of "Reasonable Care." 
 
 the defendants performed their duty with reasonable diligence.' "It was for 
 the plaintiff to prove negligence ; the defendants' undertaking was, not to carry 
 safely, but to carry with reasonable care." ^ Moreover, we find that the English 
 courts have adapted their procedure, in actions for injuries sustained by passen- 
 gers, to conform to this idea. In all actions founded on negligence, the question 
 whether the defendant has been guilty of a want of ordinary care being, in 
 general, a question for the jury,^ we find they direct the jury to inquire what 
 the duty of the defendant was in the pj-emises. This is well illustrated in the 
 case of Bichardson v. Great Eastern Bailway Company, set out at some length 
 in another section.'' 
 
 § 7. American Expressions of this Rule. — The courts have, for the most 
 part, abandoned the habit of dividing care, and its antithesis, negligence, into 
 degrees.'' The expression "extraordinary care," in the view of some courts, 
 means no more than that the carrier must use reasonable care ; that this reason- 
 able care is a relative term, having reference to the duties which the carrier has 
 
 1 Lord Coleridge, C. J., id. 491. 
 
 2 Pollock, C. B., in Bird v. Great Northern 
 R. Co., 28 L.J. (Exch.) 3. 
 
 3 2 Thomp. on Neg., p. 1239. 
 
 * It migiit be worth while to inquire into 
 the change of judicial sentiment, which, be- 
 ginning with the doctrine that the proprietor 
 of a stage-coach drawn by horses was a war- 
 rantor of the soundness and safety of his ve- 
 hicle, ended by making the proprietor of a 
 railway train propelled by steam, at five or 
 .=ix times the speed of the stage-coach, liable 
 only for a want of what the books term " rea- 
 sonable care." Certainly if it is right to tell 
 a jury that a stage proprietor is bound to 
 furnish a safe vehicle, it is not right to tell 
 them a railway company is only bound to use 
 reasonable care to the same end. The dif- 
 ference between the old rule and this mod- 
 ern English rule, if it can be said to be an 
 established rule, is vital. The old rule 
 necessarily and logically carried with it the 
 rule that the mere happening of the acci- 
 dent to the carrier's vehicle, or other means 
 of transportation, was primd facie sufficient 
 to charge him, and cast upon him the burden 
 of excusing himself. But under the modern 
 rule, we find the judges looking beyond the 
 mere happening of the accident for what is 
 termed " evidence of negligence." Thus, in 
 one case, where the injury occurred from the 
 fracture of a rail, the jury were told by Lord 
 Cockburn, C. J., that if they should be of 
 opinion that the accident was thus caused, 
 and that the use of the rail was negligence on 
 the part of the comjiany, the plaintiff was 
 entitled to their verdict. The question of 
 the burden of ijroof, however, in this case 
 
 was not, it must be confessed, distinctly 
 presented. But in Withers v. North Kent K. 
 Co., 27 L. J. (Exch.) 417 (affirming s. c. 1 Fost. 
 & Fin. 165), where a railway train went ofE 
 the track in consequence of the track being 
 washed away by an extraordinary rain, it 
 was said by Bramwell, B., in his opinion, 
 that negligence must be shown by the 
 plaintiff, and that the defendants were bound 
 to know only that which could he knoion by the 
 exercise of ordinary care and diligence. In 
 the later case of Great Western R. Co. v. 
 Braid, 1 Moo. P. C. C. (N. S.) 101 (s. c. 9 Jur. 
 (N. s.) 339; 11 Week. Rep. 444), this doctrine 
 was not followed so far as it related to the 
 burden of proof. But in Bird v. Great West- 
 ern R. Co., 28 L. J. (Exch.) 3, Pollock, C. B., 
 said that whether the mere happening of the 
 accident was primd facie evidence of negli- 
 gence depended on the nature of the acci- 
 dent. For instance, if the accident arose 
 from the collision of two trains on the same 
 line, then he admitted that it might be so. 
 But where the accident consisted of the train 
 running off the track, he held that the rule 
 was different. Here it was for the plaintiff 
 to prove negligence. The defendants' un- 
 dertaking was not to carry safely, but to 
 carry with reasonable care. See, however, 
 Skinner v. London etc. R. Co., 5 E.xch. 780, 
 where Pollock, C. B., followed the rule of 
 Lord Denman, C. J., in Carpue v. London 
 etc. R. Co., 5 Q. B. 751, and held that a col- 
 lision of railway trains was primd facie evi- 
 dence of negligence. See § 9, iTifra. 
 
 ■' See Str. New World v. King, ante, p. 175; 
 2 Thomp. on Neg., p. 844; Whart. on Neg., 
 chap. 1.
 
 208 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 undertaken and to the risks incident to the business. It means nothing more 
 than this : tliat the carrier, being intrusted with the most important interests, 
 namely, with human lives, must use a degree of care commensurate with those 
 interests, and have at the same time due regard for the practical exigencies 
 of the business.' 
 
 In a late case in the Supreme Court of Michigan, involving the liability of rail- 
 way carriers of passengers, Campbell, J., delivering the opinion of the court, 
 says : " If they exercise their functions in the same way with prudent railway 
 companies generally, and furnish their road and run it in the customary manner 
 which is generally fouud and believed to be safe and prudent, they do all that is 
 incumbent upoji them." The court cite in support of this view several Michigan 
 cases, '^ and also recent cases in the English courts, holding the same doctrine; * 
 and the New York cases on the same subject are referred to with disapproval. 
 "They," continues the learned judge, "entirely ignore the true ground of 
 responsibility as depending on the actual negligence of the carrier. There is no 
 such thing as implied negligence, when there is none in fact." * 
 
 But we must ignore the teachings of nearly all the cases* unless we con- 
 clude that a court is warranted, in all actions of this kind, in telling the 
 jury that the carrier is bound to exercise for the safety of his passen- 
 gers a higher degree of care than that which springs out of ordinary social 
 obligations ; that he is bound to exercise the highest degree of care to which 
 human skill and foresight can attain, consistent with the carrying on of the busi- 
 ness and with the known methods and the present state of the particular art. ^ 
 
 ^ Sawyer v. Hannibal etc. R. Co., 37 Mo. tions in knoion practical use for securing the 
 
 240, 2f)0; Le Barron v. East Boston Ferry safety and convenience of their passengers. 
 Co., 11 Allen, 312. If they have done so, they have done their 
 
 * Michigan etc. R. Co. «. Coleman, 28 Mich. duty and are not guilty of negligence; if 
 440; Grand Rapids etc. R. Co. «. Jiidson, 34 they have failed in their duty, and their ueg- 
 Mich. 506; Fort Wayne etc. R. Co. v. Gilder- ligence has caused the injury, then they are 
 sleeve, 3:5 Mich. 133; Michigan etc. R. Co. r. liable in the action. You are to consider 
 Dolan, 32 Mich. 510. what is reasonable care, and whether they 
 
 ^ Richardson V. Great Eastern R. Co., 1 C. have used the proper precautions. Theyai'e 
 
 P. Div. 342; Daniel v. Metropolitan R. Co., intrusted with most important interests, — 
 
 L. R. 5 H. L. 45; Readhead v. Midland R. Co., with human lives, — and a jury may reason- 
 
 ante, p. 124. ably require an amount of care proportioned 
 
 * Grand Raiiids etc. R. Co. v. Huntley, 38 to those interests. At the same time, a jur.v 
 Mich. 537, 546, 548. would not be entitled to expect the utmost 
 
 '■' Supra, § 4. care that could possibly be conceived, or the 
 « Oliver v. New York etc. R. Co., 1 Edm. highest possible degree of skill. It is to be 
 Sel. Cas. 589; Kansas Pacific R. Co. «. Mil- borne in mind that railways themselves are 
 ler, 2 Col. 442; Sullivan i;. Phila. etc. R. of recent introduction, and that their man- 
 Co., 30 Pa. St. 234; Wilkie v. Bolster, 3 E. D. agement is a matter of experience and of 
 Smith, 327; Houston etc. R. Co. v. Gorbett, practical knowledge which increases day by 
 49 Texas, 573; Caldwell v. Murphy, 1 Duer, day. It is not to be expected that the direc 
 
 241. This doctrine was thus admirably ex- tors shall at once have in use every inveutioii 
 pressed by Erie, C. J., in charging a jury: or discovery of science. It is sufficient if 
 " Negligence is not to be defined, because it they use every precaution in known practicul 
 involves some imjuiry as to the degree of wse, for the so/e^.v and conrejwence of the pas- 
 care required, and that is the degree which seugers. ^o</i objects must be looked to. It 
 the jury think is reasonably to be required is easy to conceive a precaution — forexam- 
 from the parties, considering all the circum- pie, a slower rate of speed — which would 
 stances. The railway company is bound to add a very small degree of security, while it 
 take reasonable care; to use the best precau- would entail a very great degree of incon-
 
 GENERAL DOCTRINES. 209 
 
 Presumption from Fact of Accident. 
 
 It is not a denial, but a just application, of this principle, that the degree of 
 care required in a carrier of passengers by stage-coaches, in the preparation and 
 management of the means of conveyance, is not a test of that which is required 
 of those engaged in transporting persons at a high rate of speed by means of 
 steam-power upon a railway. • 
 
 § 8. Limitations upon the Rule of Extraordinary Care. — The rule imposing 
 upon the carrier of passengers the highest degree of care has this limitation : 
 it applies only to those means and measures of safety which the passenger of 
 necessity must trust wholly to the carrier. It is, in general, applicable only to 
 the period during which the carrier is in a certain sense the bailee of the person 
 of the passenger. We have seen in the previous chapter that where the passen- 
 ger is injured by reason of certain defects in the buildings or grounds of the 
 carrier before the transit has commenced or after it has ended, the carrier is or is 
 not liable, accordingly as he has or has not been guilty of a want of ordinary care. 
 In this respect he occupies toward the passenger the precise relation of any 
 other owner of real property towards his customers who come upon his premises 
 by his invitation, expressed or implied, to do business with him. So, as to those 
 buildings, platforms, grounds, etc., supplied by the carrier for the use of the 
 passenger, where the latter is not merely passive, — as, the means of entrance 
 to or of exit from his vehicle, — if the passenger is injured on account of 
 any visible defects, under such circumstances that his own want of care may be 
 supposed to mingle to some extent as an ingredient in the accident, the carrier 
 will not, it seems, be held liable for not having, in the construction or repair of 
 the particular instrumentality, exercised extraordinary care. Thus, a passenger, 
 in making his exit from a steamboat, slips upon the smooth and slippery surface 
 of a plate of brass with which the steps are covered, falls, and is injured. The 
 particular stairs are finished in the same manner as the best river-boats and 
 American sea-going steamers. The carrier is not liable for this injury, and it 
 is error to refuse a nonsuit.^ The flap of a ferry-boat is not made after the latest 
 and most approved pattern, and does not present an even surface for teams to 
 drive over in making their exit from the boat. A man with his horses and sled 
 attempts to drive off the boat. His sled strikes the edge of the flap, and is 
 brought up with a sudden jerk, which precipitates his load forward upon him and 
 injures him. The ferry company is not liable simply because it did not adopt 
 the latest improvement in the means of exit of vehicles from its boat.^ 
 
 §9. Presumption of Negligence from the happening of the Accident. — 
 
 Although it is never strictly true, in relations not springing out of contract, that 
 a presumption of negligence arises from the mere fact that an accident has 
 happened, without more, — that is, the mere fact that A. has been accidentally 
 
 venience. And a company ought not to be Y. 9 (affirming ». c. 16 Barb. 353), ante, p. 
 
 found guilty merely because they possibly 160. 
 
 might have done something more for safety, " Crocheron v. North Shore Staten Island 
 
 al a far greater sacrifice of convenience." Ferry Co., 56 N. Y. 656 (reversing s. c. 1 
 
 Ford V. London etc. R. Co., 2 Fost. & Fin. Thomp. & C.416). 
 
 730, 732. ^ Le Barron v. East Boston Ferry Co., 11 
 
 1 Hegeman v. Western R. Corp., 13 N. Allen, 312. 
 
 14
 
 210 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 injured will not raise a presumption that B. has injured him, — j'et, where A. has 
 for a consideration undertaken a certain duty to B., and has failed in the per- 
 formance of it, it is obvious that B. makes out a case for damages against A. by 
 proving that A. has undertaken that duty and failed in its performance, without 
 more. Of coui'se, this supposes that B.'s evidence simply discloses facts suffi- 
 cient to show the undertaking of such duty of A., and A.'s failure to perform it. 
 It may be that in attempting to make this appear, B. will be obliged to give 
 evidence of circumstances which, while showing the undei-taking of the duty, and 
 the failure, carry along with them evidence of a legal excuse on the part of A. 
 for not discharging the duty which he had undertaken. Thus, a railway company 
 undertakes to transport B. from the city of C. to the city of D. A bridge upon 
 the company's road has Ijcen burnt down, and, notwithstanding due inspection of 
 its road by the company, this fact is not discovered until the train on which B. is 
 is plunged into the chasm and B. is killed. Under a statute providing for the 
 survival of actions in cases where the injury results in death, B.'s widow brings 
 an action against the railway company. Now, it is supposed that if her evidence 
 shows that the company contracted, for a consideration, to carry B. as stated, 
 and that owing to the burning of one of the company's bridges an accident 
 happened in which B. was killed, she makes out a case against the company. 
 But suppose that the evidence that she is obliged to introduce touching the facts 
 of the accident shows that the bridge was burned down by a hostile force at war 
 with the constituted authorities of the government. Here, it is supposed, the 
 evidence taken together would not raise a presumption of negligence on the part 
 of the company, and would not be sufficient to make out her case, unless she 
 should also show that, notwithstanding the bridge was burnt by the public 
 enemy, if it had been properly watched, the men in charge of the train would 
 have been apprised of the accident in time to have avoided the consequence from 
 it which happened. • Again, the evidential facts introduced by the plaintiff may 
 be such as to present at the same time evidence of negligence on the part of the 
 defendant and of contributory negligence on his own part. For, although the 
 carrier is under a high degree of care to carry the passenger in safety, this does 
 not absolve the passenger from the duty of taking ordinary care to avoid being 
 injured. If the evidence for the plaintiff is of such a character as to present at 
 the same time these two questions alone, then the question as to the burden of 
 proof does not arise at all ; it will be for the court to consider whether the facts 
 in proof amount to what the books term evidence of negligence in the carrier, and 
 also whether they amount to evidence of negligence in the passenger. - 
 
 In conformity with these views and with the weight of authority, we may state 
 the general rule to be, that where an injury happens to the passenger in conse- 
 quence of the breaking or failure of the vehicle, roadway, or other appliances 
 owned or controlled by the carrier, and used by him in making the transit, the 
 person entitled to sue for an injury makes out a primt facie case for damages 
 against the carrier by showing the contract of carriage, that the accident 
 happened in consequence of such breaking or failure, and that in consequence of 
 
 ' Sawyer v. Hannibal etc. R. Co., 37 Mo. s. c. 42 L. J. (Q. B.) 105; 21 Week. Rep. 5S4; 
 
 240, 260. 28 L. T. (N. S.) 282. See also Laing v .Colder* 
 
 2 A good illustration of this is the case of 8 Pa. St. 479. 
 Gee V. Metropolitan li. Co., L. 11. 8 Q. B. 161 ;
 
 GENERAL DOCTRINES. 211 
 
 Presumption from Fact of Accident. 
 
 this accident he sustained damage. When these facts are made to appear, it will 
 devolve upon the carrier to excuse this primd facie failure of duty ; to show that 
 notwithstanding the accident happened, as shown by the plaintiff's evidence, 
 it happened in spite of the use by himself, his servants, and the contractors by 
 whom his roadway, appliances, and vehicles were built, of the greatest degree of 
 diligence practicable under tlie circumstances. In other words, he must show, 
 in order to rebut this presumption, that the accident resulted from circumstances 
 against which human care and foresight could not guard.' If he makes it appear 
 that he, and the agents and contractors whom he has employed, have discharged 
 tlie very high measure of care and skill which, as already seen, the law puts upon 
 him, he will be entitled to a verdict of acquittal. This rule may possibly be made 
 clearer by stating it in a different way. It means that while the burden is on the 
 j)laintiff generally to maintain the affirmative of the issue, yet he discharges this 
 ])urden by showing that the accident happened through the failure of some of the 
 means adopted and used by the carrier in attempting to make the transit. He is 
 not required to go further, and show affirmatively that the high degree of care, 
 5;kill, and foresight which the law puts upon carriers would have avoided the 
 iiccident.- The law, looking both to the convenience and justice of the case, — 
 convenience, because the evidence is generally in the possession of the defendant 
 and not in that of the plaintiff; and justice, because the plaintiff should not be 
 required to give evidence as to facts which are known to the defendant and not to 
 him, and which the defendant is interested in withholding from him, — requires 
 the defendant to prove affirmatively that such care and skill were exercised. 
 
 To state cases in illustration of this rule : A passenger is injured in conse- 
 quence of a stage breaking down,^ or overturning ;* or of ahorse hitched to 
 an omnibus kicking through a front panel of the vehicle;^ or of the horses 
 starting up while the passenger is aligliting;^ or of an embankment of the 
 railway giving way ; ' or by the train running off the track,8 or colliding with 
 
 1 Boweu V. New York etc. R. Co., 18 N. Y. v. Yarwood, 15 111. 468; s. c. 17 111. 509; 3Ic- 
 
 408; Christie v. Griggs, ante, p. 181; Balti- Lean v. Burbank, 11 Minn. 277; Sawyer v. 
 
 more etc. R. Co. v. Wiglitman, 29 Gratt. 431, Hannibal etc. R. Co., 37 Mo. 240, 260. 
 444; Great Western R. Co. v. Braid, 1 Moo. - Caldwell v. New Jersey steamboat Co., 
 
 P. C. C. 101 ; 8. c. 9 Jur. (N. 8.) 339; 11 Week. 47 N. Y. 282. 
 
 Rep. 444; Carpue v. London etc. R. Co., 5 Q. ^ Christie v. Griggs, ante, p. 181; Ware r. 
 
 B. 749, per Lord Denman, C. J., at nisi prius; Gay, 11 Pick. 106. 
 
 Skinner v. London etc. R. Co., 5 Exch. 786; * Farish v. Reigle, 11 Gratt. 697; Stokes v, 
 
 Meier v. Pennsylvania R. Co., 64 Pa. St. 225; Saltonstall, ante, p. 183; McKinney v. Neil, 1 
 
 Laing r. Colder, 8 Pa. St. 479, 483, per Bell, McLean, 540; Stockton v. Frey, 4 Gill. 406; 
 
 J.; Sullivan v. Phila. etc. R. Co., 30 Pa. Fairchild v. California Stage Co., 13 Cal. 
 
 St. 234, 239; Farish v. Reigle, 11 Gratt. 599. 
 
 697; Wilkie v. Bolster, 3 E. D. Smith, 327; * Simson v. London etc. Omnibus Co., L. 
 
 Stokes V. Saltonstall, ante, p. 183; Railroad R. 8 C. P. 390; s. c. 42 L. J. (C. P.) 112; 21 
 
 Co. V. Pollard, 22 Wall. 3^11; Holbrook Week. Rep. 595; 28 L. T. (N. S.) 550. 
 r. Utica etc. R. Co., 16 Barb. 113 (af- '■ Roberts r. Johnson, 58 N. Y. 613 (afflrm- 
 
 Jirmed 12 N. Y. 236) ; Toledo etc. R. Co. v. ing s. c. 5 Jones & Sp. 157). 
 Beggs, 85 111. 80; Pittsburgh etc. R. Co. v. ' Great Western R. Co. v. Braid, 1 Moo. P. 
 
 Thompson, 56 111. 1.38; McKinney v. Neil, 1 0. C. (N. 8.) 101; s. c. 9 Jur. (N. 8.) 339; 11 
 
 .McLean, .'540; Stockton v. Frey, 4 Gill, 406; Week. Rep. 444; Brehm v. Great Western R. 
 
 Fairchild v. California Stage Co., 13 Cal. 509 ; Co., 34 Barb. 256. Contra, Withers v. North 
 
 Ware v. Gay, 11 Pick. 106; Younge v. Kinney, Kent R. Co., 27 L. J. (Exch.) 417 : «. c. at iiiH 
 
 28 Ga. Ill : Rrelnn v. Great Western R. Co., prius, sub nom Kent v. Great Northern R. 
 
 34 Barb. 2.56; Cmtis v. Roclie-ter etc. R. Co., Co., 1 Fost. & Fin. I(i5. 
 18 N. Y. r>34, ante. p. 18s : (.iilcna etc. R. Co. « Carpue v. London etc. R. Co., 5 Q. B. 749,
 
 212 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 with another train/ or with an object projecting from a car of a train of a 
 carrier coming from an opposite direction upon another track of the defendant,^ 
 or breaking down ; ^ or where the boiler of a steam vessel explodes ; * or where 
 some unknown substance strikes the car, injuring the passenger;^ or where a 
 female passenger, standing up in a Pullman car, receives a fall in consequence of 
 other cars being shunted against this car in switching.^ In all these cases, the 
 mere fact that the accident happened under the circumstances named was held 
 to create a presumption of negligence against the cai'rier, which he must over- 
 come by evidence on his part, or suffer a judgment for damages. So, where the 
 accident was shown to have happened from the explosion of a lamp in an 
 omnibus, it was held that the burden lay on the defendant to show that the 
 burning-fluid, or other material, used in the lamp was a safe and proper articled 
 So, where the plaintiff proves that the defendant's coach in which he was 
 riding was di^iven at a moderate rate of speed upon a plain and good level road, 
 and that, coming in contact with another object, one of the wheels came off and 
 the coach overturned, whereby the plaintiff was hurt, the law would imply 
 negligence from these facts ; for it would be a reasonable conclusion from them 
 that the stage-coach was not properly fitted and provided. Then the burden 
 of proof would change, and it would be for the defendant to rebut this legal 
 inference. 8 
 
 The foregoing rule refers to the legal value of certain evidential facts, and, 
 like many other legal rules, it is in danger of being misapplied unless its boun- 
 daries are carefully ascertained. We doubt if these boundaries have been better 
 summarized than by Messrs. Shearman and Redfield in their excellent work on 
 Negligence, where they say there must be ^^ prima facie proof that the proximate 
 cause of such injuries was a want of something which, as a general rule, the 
 carrier was bound to supply, or the presence of something wliich, as a general 
 rule, the carrier was bound to keep out of the ivay." ' 
 
 It is believed that three exceptions to it may be stated : — 
 
 1. It does not apply where the defect, deficiency, or peculiarity in the carrier's 
 means of transportation or accommodation, which was the occasion of the 
 accident, was visible, seen by, and known to the passenger as well as to the 
 carrier. This may be well illustrated by a case in Massachusetts, already quoted 
 in other connections. There, the flap of a ferry-boat was not of the most con- 
 venient pattern ; it did not unite with the sui-face of the dock on a level, but 
 made a jog. A passenger attempted to drive off with his horses and sled. His 
 sled struck the jog, and stopped with a sudden jerk which threw the load 
 
 per Lord Denman, C. J., at nisi prius; Sulli- 3 Meier v. Pennsylvania R. Co., 64 Pa. St. 
 
 van V. Phila. etc. R. Co., 30 Pa. St. 234; Pitts- 225; Toledo etc. R. Co. v. Beggs, 85 111. 80. 
 
 burgh etc. R. Co. v. Thompson, 56 III. 133 is.c. * Caldwell v. New Jersey Steamboat Co., 
 
 4 Ch. Leg. X. 9; Yonge v. Kinney, 28 Ga. 47 Y. Y. 282,293. 
 
 Ill; Edgerton v. New York etc. R. Co., 35 = Holbrook v. Utica etc. R. Co., 16 Barb. 
 
 Barb. 389; Zemp v. Railroad Co., 9 Rich. L. 113 (affirmed 12 N. Y. 236). 
 
 84; Dawson u. Manchester etc. R. Co., 7 Hui-1. ^ Raih-oad Co. v. Pollard, 22 Wall. 341. 
 
 & N. 1037. Contra, Bird v. Great Northern R. ? Wilkie r. Bolster, 3 E. D. Smith, 327. 
 
 Co., 28 L. J. (Exch.) 3. 8 Ware v. Gay, 11 Pick. 106. 
 
 1 Skinner V.London etc. R. Co., 5 Exch. « Shear. &Uedf. on Neg., §280. This state- 
 786; s c. 2 Eng. Law& Eq. 360; 15 Jur 299; ment of doctrine was cited with approval in 
 New Orleans etc. R. Co. v. Allbritton, 38 Miss. Railroad Co. t;. Mitchell, 11 Heisk. 400, 403. 
 242, 274. See also Miller v. St. Louis R. Co., 5 Mo. App. 
 
 2 Walker v. Erie R. Co., 63 Barb. 260. 471.
 
 GENERAL DOCTKINES. 213 
 
 Presumption from Fact of Accident. 
 
 forward upon liim and injured him. Here it was held that the mere fact that 
 the accident happened under the circumstances stated did not make out a case 
 against the ferry company ; and the reasons for this couchision are well set forth 
 in the opinion of the court by Colt, J. : ^ " The plaintiff further asked the court 
 to rule that, having proved due care on his part, and the occurrence of the acci- 
 dent, the law would imply negligence on the part of the defendants, and cast 
 upon them the burden of proving that the accident happened without their 
 fault. We think such instruction would have been erroneous, as applied to 
 the case presented upon the pleadings and evidence. The declaration alleges 
 that the negligence of the defendants consisted in not providing safe exit for 
 the plaintiff with his loaded wagon from their ferry-boat, so that in attempt- 
 ing to pass off the boat the wheels of the wagon struck violently against the 
 drop of the ferry and threw the load upon the plaintiff, causing the injury com- 
 plained of. 
 
 " The general rule that the plaintiff, in actions of this description, is bound to 
 prove negligence on the part of the defendants as the cause of the injury, has 
 been apparently modified in a class of cases in which it is said that proof of due 
 care on the part of the plaintiff, with proof of the accident, is primdL facie evi- 
 dence of negligence on the part of the defendants. An examination of these 
 cases, we think, will show that there is in them no real invasion of the general 
 rule as to the burden of proof. It will be found, we believe, in all of them, that 
 the nature of the accident was such, or the attending circumstances such, that 
 proof of the accident alone raised a presumption of negligence, and that the 
 same evidence which proved the injury done also pi'oved the defendants' negli- 
 gence, or developed circumstances from which it must be presumed. Thus, 
 in Carpue v. London and Brighton Baihcay,^ where the injury was caused by 
 a train running off the track and overturning the carriage in which the plain- 
 tiff was a passenger, Denman, C. J., told the jury that, 'it having been shown 
 that the exclusive management of the machinery and the railway was in the 
 hands of the defendants, it was presumable that the accident arose from their 
 want of care, unless they gave some explanation of the cause.' So in Stokes v. 
 Saltonstall,^ the injury was occasioned by the overturning of a stage-coach; and 
 in Ware v. Gay * the accident was of a similar nature, occasioned by the running 
 off of the wheel of the coach in which the plaintiff was a passenger. In these 
 cases clearly the nature of the accident afforded proof of the defendants' negli- 
 gence. 
 
 "The plaintiff, in proving his injury, must ordinarily prove the nature of the 
 accident and the circumstances; and when such proof has any tendency to 
 prove negligence, and especially when the defendant has exclusively the means 
 of knowledge within his control as to what caused the injury, it is said 
 the burden is cast upon the defendant to explain the cause and exculpate 
 himself. 
 
 " Upon recurring to the facts in this case, it appears that this accident njight 
 have happened witliout negligence on the part of the defendants, and that the 
 means of knowledge as to the cause of the injury were equally within the reach 
 
 > Le Barron v. East Boston Ferry Co., 11 2 5 Q. B. 747. 
 
 Allen, 312, 316. » 13 Pet. ISl. ■• 11 Pick. 106.
 
 214 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 of both parties. The court therefore rightly declined to give the instructions 
 asked for upon this point, and for tlie reasons stated ; the instructions which 
 were given were sutficientl.y favorable to the plaintiff." 
 
 2. It does not apply where the occasion of the hurt of the passenger was an 
 active voluntary movement on his part, combined with some alleged deficiency in 
 the carrier's means of transportation or accommodation; and the reason is that 
 in such cases it is necessary to consider wliether there may not have been con- 
 tributory negligence on the part of a passenger. It is only in respect of those 
 accidents which happen to the passenger while he passivelj' trusts himself to 
 the safety of the carrier's means of transportation, or to the skill, diligence, 
 and care of his servants, that the rule applies. To illustrate this, let us consider 
 two cases side by side. A passenger is seated in a railway coach, and the train 
 being in motion, the coach comes in contact with some unknown substance, 
 injuring the passenger. The happening of such an accident is prima facie evi- 
 dence of negligence on the part of the carrier.' But where an accident happened 
 to the passenger in consequence of his having thrust his arm out of the window, 
 so that it came in contact with some substance which the train was passing, this 
 would not be so.^ And the same rule was declared where the passenger fell ia 
 leaving the car, and passed under the wheels and was killed ; ^ and where the 
 passenger, in consequence of a voluntary movement made by him, had his han'i 
 caught in a door and injured.* 
 
 3. It does not apply where the plaintiff's evidence shows that the accident was 
 caused by something so wholly disconnected with the operation of the carrier's 
 business as not to involve the safety or sutficieucy of his instrumentalities, or th« 
 negligence of his servants. This was conceded by the court in the case of the 
 Kansas Pacific Railway Company v. Miller,^ and is intelligently stated and ex- 
 plained by Seldex, J., in Curtis v. Bochester and Syracuse Bailroad Company .^ 
 The obvious correctness of this rule may be seen from one or two illustrations 
 of it : While a railway train is in motion, a passenger is struck by a gunshot 
 fired from without; a malicious person suddenly places an obstruction upon a 
 railway track in front of the train, or misplaces a switch in the night,^ wherebj' 
 it is thrown from the track and a passenger injured; a ship is fired upon by a 
 piratical craft and sunk, and a passenger drowned; a railway passenger-train, 
 proceeding with due care upon a level and safe track, is overthrown by the violence 
 of a tornado.* It is only necessary to suggest these cases to enforce the conclu- 
 sion that in the absence of other evidence, showing negligence on the part of the 
 carrier, no presumption Avould be raised which would shift the burden of proof 
 upon him. And the reason is that the so-called presumption of negligence arising 
 from the mere happening of the accident is not a presumption of law, but a pre- 
 sumption of fact, and it is not the less a presumption of fact because it is drawn by 
 the judge from the facts in proof, and not by the jury. It is a conclusion to be 
 drawn from the existence of certain evidential facts, and this conclusion will be 
 
 i 
 
 1 Holbrook v. Utica etc. B. Co., 16 Barb. ^ 2 Col. 442, 45S. 
 
 113 (affirmed 12 N. Y. 236). 6 Ante, p. ISS. See also Deyo v. New York 
 
 - See the next chapter. etc. K. Co., 34 N. Y. 9. 
 
 3 Railroad Co. v. Mitchell, 11 Heisk. 400. • Latch v. Rumuer R. Co., 27 L. J. (Exch.) 
 
 ■* Metropolitan R. Co. v. Jackson, 3 App. 155. 
 
 Cas. 193. 8 McClaryv. SiouxCityetc. R. Co.,3Neb.44.
 
 IN RESPECT OF VEHICLE AND ROADWAY. 215 
 
 Latest Improvements — Latent Defects. 
 
 drawn accordingly as the facts are or are not sufficient to warrant it. And when 
 the question arises whether the conclusion is to be drawn or not, it is solved by 
 precisely the same principle which solves the question under what circumstances 
 negligence is a question for the judge, and under what a question for the jury.' 
 In those cases, if the facts in evidence are such that no reasonable man could 
 draw from them a conclusion that the defendant had been negligent, the judge 
 nonsuits the plaintiff. 
 
 II. In failing to provide a safe Vehicle and Roadway. 
 
 § 10. Duty to adopt Latest Improvements. — It is obvious that so high a 
 degree of care as that which the law exacts of the carrier of passengers is not 
 discharged unless the carrier adopts, so far as is practicable, the latest improve- 
 ments in his means of transportation which have been found by experience well 
 adapted to increase the safety of his passengers. If this is true generally, it is 
 especially true when he undertakes to carry passengers by the dangerous agency 
 of steam. There is, however, a limit to this obligation. "Railroads must keep 
 pace with science and art and modern improvements, in their application to the 
 carriage of passengers, but are not responsible for the unknown as well as the 
 new." * It is obviously impossible to state any rule as to where the limit of this 
 duty lies; and for this reason it must, in general, be a question of fact for the 
 jury.* A less stringent rule has been adopted in Massachusetts. There, the rule 
 has been laid down that a carrier is not bound to adopt a new and improved 
 method because safer or better than the methods already employed by him, if 
 it is not requisite to the reasonable safety or convenience of his passengers, and 
 if the expense is excessive ; the cost of such improved method may be a suffi- 
 cient reason for refusing to adopt it.* 
 
 § 11. Accidents from Latent Defects in Vehicles. — If a carrier, in the con- 
 struction of a machine, in the purchase of it where it is constructed by another, 
 in the inspection of it at the time of its purchase and from time to time during 
 its use by him, and finally in the use of it, uses that exhaustive care which is 
 reasonably incumbent upon him, considering the nature of his business and the 
 risks which it involves to his passengers, and, notwithstanding such care, his 
 vehicle breaks down and his passengers are injured or killed, he will not be 
 liable to pay damages to them or their personal representatives.* It has been held 
 that a carrier will be liable if the defect iu the vehicle which caused tlie accident 
 
 1 2 Thomp. on Neg., p. 1235. R. Co. v. Thompson, 56 111. 138. On the same 
 
 * Agnew, J., in Meier v. Pennsylvania R. principle, a livery-stable keeper who lets 
 Co., 64 Pa. St. 225, 230. carriages for hire is answerable to the hirer 
 
 8 It was so held in Hegeman v. Western for injuries which may happen by reason 
 
 R. Corp., ante, p. 160. of defects in the carriage which might have 
 
 * Le liarron v. East Boston Ferry Co., 11 been discovered by the most careful and 
 Allen, 312. Comit.'ire also the observations thorough examination, but not for an injury 
 of Bellows, J., in Taylor v. Railway, 48 N. H. which happens in consequence of a hi<lden 
 316, supra, § 4, suljsect. 2. defect, which could not upon such examina- 
 
 * Stokes f. FJastern Counties It. Co., 2 Fost. tion have been discovered. Hadley v. Cross, 
 & Fin. 691. To the same eltect is Peorui etc. 34 Vt. 686.
 
 216 LIABILITY OF THE CAKRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 could have beeu discovered by any test kiiowu to a mau skilled in the business of 
 manufacturing such vehicles.' It is not material that any or all skilful manu- 
 facturers had, up to the time of the accident in question, omitted certain known 
 tests, the use of which would have prevented the accident; ^ which is equivalent 
 to saying that ordinary care — that is, the care employed by a good and careful 
 man engaged in a like business — will not discharge the carrier. 
 
 Where the axletree of a coach broke on a cold day, in consequence of which a 
 passenger was injured, and the defence was that the breaking happened in con- 
 sequence of frost, the trial court declined to give the following instructions at 
 the request of the defendants: (1.) "If the jury believe from the evidence that 
 the cause of the accident which occasioned the plaintiff 's injury was the breaking 
 of the axletree of the defendants' coach from frost, and not from any defect 
 in the axletree, then they should find for the defendants. (2.) If the jury 
 believe from the evidence that the cause of the accident which occasioned the 
 plaintiff's injury was the breaking of the axletree of the coach from frost, and 
 not from any defect in the coach or in the axletree, then, whether the coach was 
 old and defective or not, they should find for the defendants. (3.) If the jury 
 believe from the evidence that it is equally as probable that the axletree broke 
 from the effect of the frost as from any defect in the coach or in the axletree, 
 then the jury should find for the defendants." But the court, on the part of the 
 plaintiff, instructed the jury as follows: "If the coach might have been con- 
 structed in a manner that would have obviated all danger from frost, and still 
 have been suitable for the business of carrying passengers, or if the defendants, 
 by housing or taking the utmost care of their coach when it was not running, 
 could have prevented the action of the frost, then, even if the axletree did break 
 from frost, that would not constitute a defence." These rulings were held 
 error, the Supreme Court saying: "The instruction given by the court for the 
 plaintiff was doubtless intended as a qualiflcation of instructions given for the 
 defendants; but, in any light, was calculated to mislead the jury, and, if held to 
 be the law, would extend the liability of common carriers of passengers to a 
 most unreasonable point. Common caiTiers of passengers are not insurers 
 against all injury or damage. Although the law requires the highest degree of 
 care on the part of the defendants, and holds them liable for slight negligence, it 
 does not require of them unreasonable or impracticable vigilance. The language 
 of the law must be viewed in a practicable- and common-sense light, and so 
 applied in the administration of justice. What is reasonable and practicable 
 under one condition of things, may not be under another. What in one case 
 Avould be accessible, and facilitate the convenience and safety of travel, in 
 another and under different circumstances might be inaccessible, and destructive 
 of the particular enterprise. The axle might have been constructed of wood, or 
 other material than iron, and have been, perhaps, suitable to the business, which 
 Irost would not affect; and yet, upon the whole, not have been as safe, or fit for 
 ihe particular use. The housing of the coach might, from the condition of the 
 country, have been Impracticable. If the same acts of care and precaution 
 practicable in the most populous countries and under the most favorable circum- 
 
 i Hegeman ». Western R. Corp., ante, p. ' Caldwell v. New Jersey Steamboat Co., 
 
 l;0. 47 N. Y. 282
 
 IN EESPECT OF VEHICLE AND ROADWAY. 217 
 
 Latent Defects. 
 
 stances were required to fill the measiu'e of the law under a condition of things 
 entirely different, existing in a new country, the effect would be to discourage 
 enterprises of the character in question, and to lessen the facilities for public 
 travel of the people of the newer portions of our country. The law is not 
 designed to work such a result. The true question for inquiry was : Would a 
 person of extraordinary prudence and caution, intending to afford the greatest 
 security to passengers and at the same time afford reasonable facilities to travel, 
 under all the circumstances have acted differently? It is impossible by the use 
 of language to define negligence in fact, applicable alike to all circumstances and 
 conditions of things ; and all that can be done in determining, in any given case, 
 whether there is or is not negligence, is, in view of all the surrounding facts, 
 the nature of the means employed, and the character of the enterprise, by the 
 exercise of the reason to form a judgment as to whether it does or does not 
 exist." 1 
 
 It is too obvious for comment that where the accident has happened from 
 the breaking of some appliance of the carrier, it will be no defence for him to 
 show that the particular appliance which broke was a sound one, of a good kind, 
 and that it was like the other appliances which he had adopted. He is bound 
 to exercise the same degi'ee of care in adopting suitable instrumentalities as in 
 seeing that each particular one is free from defects. Thus, it is no defence to 
 such an action, for a stage-coach proprietor to show that the harness which 
 broke was a sound harness of the style which he used on his line.^ 
 
 But if the appliances are amply sufficient for all the ordinary purposes of 
 travel, the carrier will not be responsible for every possible accident occurring, 
 although their construction might have been improved so as to have averted the 
 mishap. Thus, the forward deck of a steamboat was surrounded by bulwarks 
 three or four feet high, with gangways upon each side, closed by rails hinged to 
 the bulwarks and of the same height, and coming down upon stanchions in the 
 centre of the gangway, leaving the space beneath open. This deck was not 
 designed for passengers, but they were permitted to come upon it with the 
 knowledge of the defendant's employees. The plaintiff's intestate, a passenger 
 on the boat, came out thereon. His hat blew off, and in springing to recover it, 
 he slipped under the gangway rail, fell overboard, and was drowned. It appeared 
 that all the boats upon the lake were constructed in the samo manner ; that they 
 had been so run for many years, and there was no proof tending to show that 
 any one had ever before gone overboard in this way, or that such danger had 
 been apprehended. It was held that the evidence failed to show negligence on 
 the part of the defendant, and the plaintiff was properly nonsuited.* 
 
 The English doctrine, elsewhere alluded* to, that the measure of duty of a 
 carrier of passengers is reasonable care, is illustrated by the case of Bichardson 
 v. Great Eastern Bailway Company,^ where it appeared that in the course of a 
 journey from P. (a junction on the defendants' line) to London, a truck which 
 had been received from another road, laden with coal, broke down in consequence 
 of the fracture of an axle, and caused a collision of the freight-train with a 
 
 » Citing Frink v. Potter, 17 111. 406, 412; » Dougan v. Champlain Transp. Co.,56N. 
 
 Beers v. Ilousatonic U. Co., 19 Conn. 566. Y. 1. 
 
 ■i Farish v. Reigle, 11 Gratt. 697, 716. ■• Sujira, § 6. ^ L. li. 10 C. P. 486.
 
 218 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 passenger-train in which the phxintiff was riding as a passenger, whereby the 
 plaintiff was injured. The truck which broJte down belonged to another com- 
 pany, whose duty it was to keep it in repair. The course of business at the 
 junction was that every truck, before coming on to the defendants' line, under- 
 went some kind of an examination as to its tituess for travel. This particular 
 truck, when submitted to such examination, was found to have a defective 
 spring, and a serious crack in one of its main timbers, and it was accordingly 
 taken upon a siding and detained there four or five days for the purpose of 
 having a new spring put on. This was done by the company owning the truck. 
 The truck (which had not been unloaded) was then- sent on, with a direction 
 chalked on it by a servant of the company owning it that it should '* stop at 
 Peterborough for repairs when empty." Upon a minute examination of the 
 truck after the accident, it was found that the fore-axle, which was three and a 
 half inches thick, had across it, near the wheel, an old crack an inch and a 
 quarter deep, which was admitted to have been the sole cause of the break- 
 down. There was conflicting evidence as to whether or not, regard being had to 
 the extent of the traffic at the junction, it was possible to have discovered this 
 defect in the axle by any practicable examination at the junction, and the follow- 
 ing questions were submitted to the jury: 1. Would the defect in the axle which 
 was the cause of the accident have been discovered or discoverable upon any 
 fit and careful examination of it to which it might have been subjected? 2. Was 
 it the duty of the defendants to examine this axle by scraping off the dirt and 
 looking minutely at it, — so minutely as to enable them to see the crack and so 
 to prevent or remedy the mischief? 3. If that was not their duty upon the first 
 view of the truck, did it become their duty so to do when, upon having dis- 
 covered the defects, [i.e., the spring, and the crack in the main timber] they 
 ordered it to be repaired, and it remained four or five days on their premises for 
 the purpose? The jury answered the first question in the affirmative and the 
 second in the negative; and to the third question they answered, "It was their 
 duty to require from the wagon company [the company owning the truck] some 
 distinct assurance that it had been thoroughly examined and repaired." The 
 learned judge thought the last answer immaterial, and directed a verdict for the 
 defendants, reserving leave to the plaintiff to move to enter a verdict for him 
 for an agreed sum if upon the facts and findings of the jury the court should be 
 of opinion tliat the defendants were guilty of negligence. Upon these findings 
 the plaintiff was held to be entitled to a verdict ; for although it might not have 
 been the duty of the defendants themselves to cause the truck to be properly 
 examined and repaired upon its arrival at the junction, nevertheless it was 
 somebody's duty to do it, and the defendants were guilty of culpable negligence 
 in not satisfying themselves that a proper examination had taken place before 
 they allowed the truck to proceed. ' 
 
 § 12. Delects in ttie Carrier's Roadway. — It is well laid down that a railroad 
 company, being the owner of its road as well as of its cai-riages, is bound to the 
 same degi-ee of diligence and skill as to the condition and construction of its 
 road as it is with reference to the condition and construction of its carriages. 
 
 1 Richardson v. Great Eastern R. Co., L. R. 10 C. P. 486.
 
 IN RESPECT OF VEHICLE AND ROADWAY. 219 
 
 Defects in Roadway. 
 
 When, therefore, the road was built on an embankment, and the company had 
 taken no precautions by widening the ground of the road, or by erecting walls, 
 to prevent trains which might run off the track from going over the embank- 
 ment, and such an accident happened, whereby a traveller was injured, it was 
 held a case for damages. ^ 
 
 So, if the gate or crossbar maintained at a railway-crossing is so constructed 
 that, in any event which may reasonably be expected to occur, it is dangerous to 
 passengers, the railway company will be liable to a passenger for any injury sus- 
 tained by reason thereof. Thus, it appeared that at the intersection of a railway 
 track and the highway the railway company had placed a gate consisting of a 
 pole about thirty-five feet long, which, when trains were passing, was swTing 
 from one side of the highway to a post on the other, as a bar to travellers on the 
 highway. On such an occasion, a heavy runaway team came along the highway, 
 dashed against the pole while in such position, and broke or loosened it from its 
 fastening. The pole swung obliquely across the railroad track, and the whole or 
 a part of it was driven into a car of the passing train, which had not slackened 
 its speed. In an action by a passenger in tliis car for injuries received in this 
 accident, evidence of the above facts was held sufficient to warrant a jury in find- 
 ing that the accident was caused by the defendants' negligence.^ 
 
 But the carrier will not be liable to pay damages if such injuries happen 
 through latent defects in his roadway, bridges, or other permanent structures, 
 where he has bestowed the highest measure of care upon the construction, the 
 inspection, and the reparation of them.^ In a case where a passenger was 
 killed by the giving way of a railway embankment after an unusual storm, the 
 judicial committee and lords of the Privy Council, after animadverting upon the 
 impracticability of laying down any rule upon the subject, thought that the 
 railway company ought to have constructed their works in such a manner as to 
 be capable of resisting all the violence which, in the climate of Canada, where 
 the accident took place, might have been expected, though perhaps rarely, to 
 occur. In other words, their conclusion was that a railway company is bound 
 to construct their roadway so that it will resist those extraordinary floods which 
 sometimes, though not often, occur.* In this case reference is made to the 
 difficulty of reconciling the case of Withers v. North Kent Bailway Company,^ 
 which is cited as an illustration of this. Though this latter case contains some 
 expressions which are not law, the correct result was no doubt reached. A 
 railway embankment, consisting of sandy soil, after having stood for five years 
 over a marshy ground, was washed away by an extraordinary storm of rain, and 
 a night train ran off the track, and the plaintiff, a passenger, was injured. A 
 verdict was returned for the plaintiff; the judgment upon which was set aside 
 by the court in banc, on the ground that there was no evidence of negligence." 
 Bramwell, B., declared that " negligence must be shown by the plaintiff," and 
 that the defendants were bound to know only that which could be known by 
 the exercise of ordinary care and prudence ; otherwise they would be insurers 
 
 1 Hanley v. Harlem R. Co., Edm. Scl. Gas. < Great Western R. Co. v. Braid, 1 Moo. P. 
 359. See also supra, § 4, subsect. 2. C. O. (N. S.) 101; s. c. '•> Jur. (N. S.) 330; 11 
 
 2 Tyrrell v. Kastern R. Co., Ill Mass. 54G. Week Kep. 444; 8 L. T. (N. S.) 31. 
 
 ■!■ Hanley v. Harlem 11 Co., Edm. Sel. Cas. '• 3 Hurl. & N. 9fi9; a. c. 27 L. J. (Exch.) 
 
 359. 417 ; at nisi prius, 1 Fost. & Fin. 165.
 
 220 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 of the safety of the passengers. All the judges thought that the existence of 
 the line for five j^ears, notwithstanding the country was subject to floods, was 
 evidence that there was no negligence. The observation of Baron Bramwell 
 that it was for the plaintiff to show negligence, ignores the rule which obtains 
 In nearly all the courts that the fact that the accident happens through a defect 
 in some appliance of the carrier is, unexplained, evidence of negligence. i 
 
 If there were no rule exacting an extraordinary degree of diligence of carriers 
 of passengers, still it would not be error for a judge to refuse to tell a jury that 
 if the injury was produced in part by an unforeseen cause, and in part by a cause 
 attributable to negligence, the plaintiff could not recover.^ It has been held no 
 error to refuse to charge that the plaintiff could not recover unless there was 
 some apparent source of danger to the embankment which gave way.* They are 
 even answerable for the negligence of another railroad company over whose 
 road they run their cars, — as, where a train is thrown from the track by a 
 switch belonging to another company.* 
 
 The fact has been developed by testimony in at least one case that good and 
 perfectly sound rails will break in cold weather when the track is in perfect 
 order; and, so far as is known, there is no way of preventing such accidents, 
 except, possibly, to increase the size of the rails to dimensions greater than that 
 in common use.' Suppose such an accident has happened, and it appears from 
 undisputed evidence that the rail which broke was, previous to the accident, a 
 sound rail, of the usual and a good size, and made of good, sound, and solid 
 iron; that the brakes were perfectly new and bright; that no fracture or crack 
 was discovered in the pieces broken off ; that the end of the rail made a good 
 joint, was perfect, not battered down, and in good order; that the chair was 
 good ; that the ties were likewise good, and sufficiently thick to support the rail ; 
 that there was a sufficient number of them; that they were sufficiently close 
 together to give a good bearing for the rail ; and that the road was well ballasted 
 with gravel around the ties. Under such evidence, thei'e is no case to go to the 
 jury, and the judge ought to grant a nonsuit.® 
 
 § 13. Negligence of Manufacturer or Contractor imputed to Carrier. — 
 The negligence of the manufacturer of a railway coach is to be imputed to 
 
 1 Supra, § 9. Byrne v. Wilson, Irish Rep. 15 C. L. 332 ; Hunt 
 
 2 Brehm v. Great Western R. Co., 34 Barb. v. Pownal, 9 Vt. 411 ; Powell v. Deveny, 3 
 256. See also Palmer v. Andover. 2 Cush. Cush. 300; Joliet v. Verley, 35 111. 58; Lacon 
 600; Titcomb v. Fitchburg R. Co., 12 Allen, v. Page, 48 111. 499; Aurora v. Pulfer, 56 111. 
 254; Austin v. Xew Jersey Steamboat Co., 270; Hull v. Kansas City, 54 Mo. 698; Ward 
 43 N. Y. 75; Lords Baililf-Jurats of Romney v. North Haven, 43 Conn. 148; Baldwin v. 
 Marsh v. Trinity House, L. R. 5 Exch. 204 Greenwoods Turnpike Co., 40 Conn. 238. 
 (affirmed, L. R. 7 Exch. 247) ; Atchison v. Contra, Wilson v. Susquehanna Turnpike 
 liing, 9 Kan. 550; Clark t7. Barrington, 41 N. Co., 21 Barb. 68; Bigelow «. Reed, 51 Me. 325 ; 
 H. 52; Kelsey v. Glover, 15 Vt. 708; Lower Proctor v. Jennings, 6 Nev. 83. Compare 
 Macungie Township v. Merkholfer, 71 Pa. St. Parker v. Union Woollen Co., 42 Conn. 399. 
 276; Hey v. Philadelphia, 81 Pa. St. 44; Morse '^ Brehm v. Great Western R. Co., 34 Barb. 
 V. Richmond 41 Vt. 435; Seigel v. Eisen, 41 256. 
 
 Cal. 109; Tucker v. Henniker, 41 N. H. 317; < McElroy v. Nashua etc. R. Corp., 4 Cush. 
 
 Winship v. Enfield, 42 N. H. 197; Woodward 400. 
 
 V. Aborn, 35 Jle. 271; Macauley v. New York, '■' See McPadden r. New York etc. R. Co., 
 
 67 N. Y. 602; Thomas v. Hook, 4 I'hila. 119; 44 N. Y. 478. 
 
 Holley V. Winooski Turnpike Co., 1 Aik. 74; ° Ibid, (reversing s. c. 47 Barb. 247).
 
 IN RESPECT OF VEHICLE AND ROADWAY. 221 
 
 Negligence of Manufacturer or Contractor. 
 
 the carrier. It is not sufficient that the carrier assures himself that the man- 
 ufacturer is of good repute in his business. If the manufacturer has failed to 
 apply a reasonable test which would have ascertained the defect, the carrier is 
 answerable for the consequences of this negligence, as though it had been his 
 own.i This doctrine is denied by the Supreme Court of Michigan in a late case, 
 but upon reasons which are believed to be unsound.'' 
 
 It follows that a special plea by the carrier setting up the following facts is no 
 defence : That the accident complained of happened in consequence of a fracture 
 in a crank-pin of one of the carriages in which the plaintiff was being carried at 
 the time; "that the said fracture was occasioned by an original defect in the 
 material and construction of the crank-pin, and in the inside or centre thereof, 
 which said defect, before the fracture occurred, was not capable of being 
 detected by the defendants upon due and proper examination or observation ; 
 that the said crank-pin was purchased, together with the said locomotive engine, 
 by the defendants in the due course of business, from competent manufacturers 
 thereof, and was not made by the defendants ; and that on the day in the said 
 first count mentioned, and shortly before the commencement of the said jour- 
 ney, the defendants duly and properly examined the said locomotive engine and 
 crank-pin, and had not, at any time before the said fracture, any notice of the 
 said defect in the crank-pin." The reason given for this conclusion is that this 
 plea does not contain any averment as to the care or skill applied to the manu- 
 facture of the engine, or as to the care or skill exercised by them in the selection 
 or inspection of it. All the averments are quite consistent with gross and culpa- 
 ble carelessness on the part of the manufacturers, and with gross and culpable 
 negligence on their part in the purchase of it from the manufacturers. "If 
 they had been themselves the manufacturers of the engine, they would have 
 been bound to appear and prove that due care and skill had been exercised in 
 the process of its manufacture. Are they to be relieved from legal liability 
 because they allege that they have purchased it from a competent manufacturer? 
 I think that would be a distinction daugerous to the public, and that, as Alder- 
 son, B., says, ' railway companies might buy ill-constructed or unsafe vehicles 
 and the public be without remedy.' " ^ 
 
 In like manner, where the accident arose from the breaking of a bridge, the 
 fact that the carrier may have engaged the services of competent engineers, 
 though a proper matter to be considered on the question of negligence, will not 
 exonerate him if the work is deficient; since this is only one element of dili- 
 gence ; he is still bound to adopt the best methods and make use of the best 
 materials.* He is also under a continuing duty of inspection and repair. So 
 also, if the railway company, whilst using its track for the carriage of passengers, 
 engages in a work to be done in the immediate proximity of its track, negli- 
 gence in the performance of which would, in the opinion of cautious persons, 
 endanger the passage of its cars, and an accident to a passenger is caused 
 
 1 Hegeman v. Western R. Corp., ante, ^ Burns v. Cork etc. R. Co., Irish Rep. 13 
 p. 160; Caldwell t;. New Jersey Steamboat 0. L. (N. S.) 543. Opinion by Pigot, C. J. 
 Co., 47 N. Y. 2*2; Carroll v. Staten Island R. * Grote v. Chester etc. R. Co., 2 Exch. 251; 
 Co., 58 N. Y. 1-26; Burns v. Cork etc. 11. Co., ». c. 5 p:ng. Rail. Cas. 649. To the same effect 
 Irish Rep. 13 C. L. (N. 8.) 543. Is Brehm v. Great Western R. Co., 34 Barb. 
 
 2 Grand Kapids etc. R. Co. v. Huntley, 38 256. 
 Mich. 537.
 
 222 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 by an obstruction arising from negligence in the performance of such work, the 
 company must pay damages : it will be no defence that the work was placed in the 
 hands of a contractor, and that the negligence which caused the injury was that 
 of one of his employees. Thus, through the negligence of the servants of a 
 contractor for the doing of certain stone-work for a railway company, a stone 
 was rolled or shaken from an embankment, and rolled under the wheels of a 
 passenger-train, throwing a car from the track and injuring a passenger. This- 
 was a case for damages. i 
 
 On the other hand, where an accident has happened from the breaking of some 
 portion of the carrier's vehicle, — as, for instance, a car-wheel, — and there is no 
 complaint that the train was not driven in a proper manner and by competent 
 persons, the cari'ier will rebut the presumption of negligence, as shown in 
 another section,^ arising from the happening of the accident, by showing that 
 the wheel was the work of a skilful manufacturer, and that it was of the kind 
 usually employed in the service, and had been subjected to and withstood the 
 usual tests.^ 
 
 § 14. This Obligation of the Carrier, how affected by Statute. — Compliance 
 with the requirements of a statute enacted to promote the safety of passengers 
 will not of itself exonerate the carrier,* although a failure to comply with it 
 would be what the courts frequently term negligence per se ; that is, the injured 
 passenger recovers damages without proof of any other negligence than a 
 failure on the part of the carrier to comply with the statute. ^ Thus, a statute 
 requiring railroad companies to fence their tracks has been construed as enacted 
 for the purpose, in the main, of protecting the lives of those transported upon 
 such roads.® Hence, if any animal gets on the track in consequence of its 
 being unfenced, and a train runs upon it and is thereby thrown from the track, 
 and in the accident a passenger is injured, there is a clear case for recovery of 
 damages against the eompany, although those in charge of the train were guilty 
 of no personal negligence in running over the animal.' 
 
 In 1838, Congress passed an act to provide for the better security of the lives 
 of passengers on board of vessels propelled ia whole or lq part by steam.^ This 
 
 1 Virginia etc. R. Co. v. Sanger, 15 Gratt. Notes, 44 ; Cayzer v. Taylor, 10 Gray, 274 ; 
 230. The case turned chiefly on the pro- Noyes r. Smith, 2S Vt. 59; Columbus etc. R. 
 priety of the instructions to the jury. Co. v. Arnold, 31 Ind. 177. The rule of the 
 
 2 Supra, § 9. New York Court of Appeals, as embodied 
 8 Toledo etc. R. Co. v. Beggs, 85 111. 80. in the case of Hegeman v. Western R. 
 
 This was the rule laid down in Illinois etc. Corp., ante, p. 160, is more stringent. 
 
 R. Co. V. Phillips, 49 111. 234, where the action ^ Caldwell v. New Jersey Steamboat Co., 
 
 was for injuries received by the explosion 47 N. Y. 282; Brown v. New York etc. R. Co., 
 
 of a boiler of one of the company's locomo- 34 N. Y. 404 (reversing s. c. 31 Barb. 3S5). 
 
 tives, injuring the plaintiff, who was a by- ^ Blair v. Milwaukee etc. R. Co., 20 Wis. 
 
 stander. Compare Losee v. Buchanan, 51 N. 254. 
 
 Y. 476; 8. c. 61 Barb. 86; 1 Thomp. on Neg. « Corwin v. New York etc. R. Co., 13 N. 
 
 47; Marshall v. AVellwood, 38 N. J. L. 339; Y. 42, 53, per Denio, J.; Blair v. Milwaukee 
 
 Spencer v. Campbell, 9 Watts & S. 32; Witte etc. R. Co., supra. 
 
 V. Hague, 2 Dow. & Ry. 33; Jones r>. Yeager, ' Blair v. Milwaukee etc. R. Co., supra. 
 
 2 Dill. 64; Morris v. Gleason, 1 Biadw. 510; 8 5 U. S. Stats, at Large, 304. Under this 
 
 AUerton Packing Co. v. Egau, 86 111. 253; s. c. statute, an action could be maintained either 
 
 18 Alb. L. J. 295; 10 Ch. Leg. N. 169; Keegan where the injury was to a member of the 
 
 V. Western R. Corp., 8 N. Y. 175 ; s. c. Seld. crew of the boat whose boiler exploded, or
 
 IN KESPECT or VEHICLE AND ROADWAY. 223 
 
 Statutory Liability — Steam-Vessels. 
 
 statute provided for the inspection, by officei's appointed for that purpose, of 
 the boilers and machinery of steam-vessels. It was made the duty of the owner 
 of such vessels to cause such inspections to be made, and licenses were granted 
 only after obtaining the inspector's certificate. This system of governmental 
 supervision of steam-vessels was further extended,^ until in 1871 an elaborate 
 statute was passed, covering in a most careful manner the whole subject.'' It 
 has been held that this legislation was not intended to limit the common-law 
 liability of ship-owners as carriers of passengers. Its object was to provide 
 additional safeguards. A failure to comply with its provisions would subject 
 the o^vne^s of steam-vessels to its penalties, and also to an action for negligence ; 
 but the statute neither takes away any common-law liability nor any common- 
 law remedy.^ Therefore, although the owner of a steamboat, whose negligence 
 has resulted in injury to a passenger, had complied with all the requirements of 
 the act in question, he may still be liable for negligence. The presumption of 
 negligence, arising from the bursting of the boiler, did not depend upon the 
 statute, but arose from the rule of the common law that where an act takes 
 place which usually and according to the ordinary course of things would not 
 happen if proper care were exercised, it is presumed that such care was not 
 observed. The provisions of the statute in this respect are not in conflict with 
 the common law; but if they were, it is said with obvious propriety, that they 
 would fall within the principle that rules of evidence prescribed by Congress are 
 not binding upon the State courts.* , 
 
 It is a general rule that whenever a statute imposes upon a person or corpora- 
 tion a duty to be performed for the benefit and security of the public distrib- 
 utively, any person sustaining specific damage by a failure to perform such 
 duty, may maintain an action therefor.^ This rule obviously holds good under 
 this statute ; but the forty-third section of the statute gives an action for a 
 failure to comply with its provisions, in the following language : — 
 
 ^^ And he it further enacted, That whenever damage is sustained by any passenger 
 or his baggage, from explosion, fire, collision, or other cause, the master and the 
 ovraer of such vessel, or either of them, and the vessel, shall be liable to each 
 and every person so injured, to the full amount of damage, if it happens through 
 any neglect or failure to comply with the provisions of law herein prescribed, or 
 through known defects or imperfections of the steaming apparatus or of the hull; 
 and any person sustaining loss or injury through the car[e]lessness, negligence, 
 or wilful misconduct of any captain, mate, engineer, or pilot, or his neglect or 
 refusal to obey the provisions of law herein prescribed as to navigating such 
 steamers, may sue such captain, mate, engineer, or pilot, and recover damages 
 for any such injury caused as aforesaid by any such captain, mate, engineer, or 
 pilot." 
 
 Although this statute nowhere contains any express prohibition of the use of 
 
 a passenger on another boat. McMahon v. * Caldwell v. New Jersey Steamboat Co., 
 
 Uavidson, 13 Minn. 357; May v. Davidson, IS 47 N. Y. 282, 292; Carroll v. Staten Island R. 
 
 Minn. 523, 537. Co., 58 N. Y. 126, 141. 
 
 1 10 U. S. Stats, at Large, 61; Uid. 227. ■" Caldwell v. New Jersey Steamboat Co., 
 
 2 Act of February 28, 1871 (16 U. S. Stats, at supra. 
 
 Large, 440; embodied in the Rev. Stats., §§ '■> For a discussion of this principle, see ft 
 
 4399-4462. South. L. Rev. (N. S.) 29, 31.
 
 224 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 a pressure of steam beyond the amount allowed by the inspector's certificate, 
 yet it has been held to contain such a prohibition by implication, and to raise a 
 statutory liability actionable under the forty-third section.^ 
 
 III. Railway Carriers. 
 
 § 15. Duties of Railway Companies in general. — In most of the foregoing 
 cases the carriers sought to be charged with liability were railway companies. 
 It will not be possible to suggest any distinct particulars in which their liabilitj- 
 differs from that of other carriers, except that as the means adopted by them 
 are greatly more dangerous to the passenger, the care demanded of them must 
 correspondingly increase. And this is equally true under the American rule, 
 which exacts an extreme degree of care,^ and under the English rule, which 
 measures their liability by the standard of ordinary or reasonable care.* For 
 ordinary or reasonable care is a varying quantity, increasing or diminishing 
 according to the increase or diminution of the risks attending the business ; * 
 and it has been well said by one eminent court, and often repeated by others, 
 that in case of railway carriage by steam the risks of human life and limb are 
 so great that any negligence may well deserve the epithet of gross.^ 
 
 Such companies must adopt such rules and regulations for the running of their 
 trains as wiU insure safety, and after adopting them they must conform to them, 
 or be responsible for injuries to passengers resulting from a departure from 
 them.® This duty they owe, not only to their passengers, but to their employees.' 
 It is also obvious that railway companies are under an obligation not to overload 
 their vehicles, similar to that which has been put upon stage proprietors.* But 
 they are under an obligation to carry safely and comfortably all proper persons 
 who may apply to be carried, tendering the requisite fare.' Great difficulty may 
 be experienced at times in discharging this obligation, especially during the 
 periods of fairs or great public gatherings. If a railway coach breaks down in 
 consequence of being overloaded, there will be no difficult}^, on principles already 
 stated, in holding that the company will be liable for any injury which may 
 thereby happen to passengers. But if a passenger in an overloaded railway 
 coach is injured in consequence of somethiag not directly connected with the 
 fact that the coach is overloaded, he will not be entitled to recover damages of 
 the company for their negligence in this particular. This is very clear, as a 
 
 1 Carroll v. Staten Island R. Co., 58 N. Y. *1 Thomp. on Neg., pp. 46, 23S. 
 
 126,141. It must be confessed that the ground s Grier, J., in Phila. etc. R. Co. ». Derby, 
 
 on which this conclusion is based is not made ante, p. 31 ; Str. New World v. Eing, ante, p. 
 
 very clear in the opinion of the court. To 175. 
 
 have held the defendant liable at common ' Chicago etc. R. Co. v. George, 19 111. 510. 
 
 law simply, and to have applied the rule ' Cooper v. Iowa Central R. Co., 44 Iowa, 
 
 laid down in Parnaby v. Lancaster Canal 134; Chicago etc. R. Co. v. Taylor, 69 111. 461 ; 
 
 Company, 1 Thomp. on Neg. 541, that al- Vose v. Lancashire etc. R. Co., 4 Hurl. & N. 
 
 though the plaintiff may have declared on a 728. 
 
 statute, yet if it could be collected from the * Infra, § 24. 
 
 allegations of his declaration that there was ^ Davis v. Kansas etc. R. Co., 53 Mo. 317, 
 
 a liability at common law, the declaration 320; Bass v. Chicago etc. R. Co., 36 Wis. 450, 
 
 would be held good, and the case would go 461; Thorpe v. New York etc. R. Co., 13 
 
 to a jury. Hun, 70, 75; Willis v. Long Island R. Co., 32 
 
 2 Supra, § 4, subsect. 2. ' Supra, § 6. Barb. 399 (s. c. affirmed in 34 N. \. 670).
 
 RAILWAY CARRIERS. 225 
 
 Time for Passenger to get on and off. 
 
 general statement of doctrine ; but the application which it received in a very 
 greatly discussed case in the House of Lords may, we think, be doubted. In 
 that case it appeared that the plaintiff was a passenger by the defendants' rail- 
 way. The carriage in which he rode ^as full. At a certain station (Gower 
 Street) three persons forced themselves in, and were obliged to stand. At the 
 next station (Portland Street) there was a rush of fresh passengers, by whom 
 the door of the carriage was opened from the outside, and who endeavored to 
 crowd their way in. The plaintiff voluntarily rose, or partly rose, from his 
 seat to push these persons back. The train moved; the plaintiff, to save him- 
 self from falling, put his hand upon the edge of the door of the carriage ; at 
 that moment a railway porter came up, pushed away the persons trying to get 
 in, and slammed the door to, in doing which the plaintiff's thumb was caught 
 and crushed. It was held that this evidence did not establish such negligence 
 on the part of the company as could be said to have occasioned the mischief. 
 Said the Lord Chancellor (Lord Cairns) : " In the present case there was no 
 doubt negligence in the company's servants, in allomng more passengers than 
 the proper number to get in at the Gower Street station; and It may also have 
 been negligence, if they saw these supernumerary passengers, or if they ought to 
 have seen them, at Portland Road, not to have removed them; but there is 
 nothing, in my opinion, in this negligence which connects itself with the acci- 
 dent that took place." ^ 
 
 § 16. Duty to afford a Reasonable Time for Passengers to get on and off 
 Trains. — The passenger is entitled to have a reasonable time within which to 
 board the train after its arrival at the station. Any movement of the train which 
 is made after it has once come to a full stop should be preceded by ample 
 warning to all passengers who may be in the act of getting on.^ Where a person 
 accompanies a passenger to the train, it has been held that he is entitled to a 
 reasonable time to place his charge upon board, and the neglect of the train-men 
 to give the customary signals of departure, whereby such person is injured in 
 getting off the train, amounts to negligence for which he may hold the company 
 responsible.^ The Supreme Court of Missouri, in the case last cited, adopted a 
 rule contrary to the decision of the Supreme Judicial Court of Massachusetts in 
 Lucas v. Neio Bedford, etc. Bailroad Company,'^ that such a person is not entitled 
 to special notice of the departure of the train; that the defendants may be 
 said to have operated their train with " ordinary care " although no such notice 
 is given such person of the departure.* 
 
 1 Metropolitan R. Co. v. Jackson, 3 App. Is indeed proper that persons having duties 
 
 Cas. 193, 198. to perform incidental to tlie departure of 
 
 - Curtis V. Detroit etc. U. Co., 23 Wis. 152; passengers should be entitled to the same 
 
 8. c. 27 Wis. liis. protection which is the due of every person 
 
 8 Doss V. Missouri etc. R. Co., 59 Mo. 27. who comes upon another's premises by invi- 
 
 * 6 Gray, 6+. tation, express or implied. This rule has 
 
 ^ The conclusion of the Missouri court been expressed with clearness and accuracy 
 
 may perhaps be questioned. The status of by the present Chief Justice of the Massa- 
 
 such persons would seem to be similar to chusetts Court: "The owner or occupant of 
 
 that of licensees, who take the license they land is liable in damages to those coming to 
 
 enjoy cum periculo. Sutton v. New York it, using due care, at his invitation or in- 
 
 etc. R. Co., GO N. Y. 243; s. c. 4 Hun, 700; ducemcnt, express or implied, on any busi- 
 
 Nicholson V. Erie R. Co., 41 N. Y. 525. It ness to be transacted with or permitted by 
 
 15
 
 220 LIABILITY OF THE CARRIER FOR NEGLIGENCE- 
 
 Notes. 
 
 If the company have been in the habit of receiving and discharging passengers- 
 at a place other than their regaUir station, it is not negligence for a passenger to 
 get on at that place while the train is standing still and there is no apparent 
 danger in so doing. It is the duty of the train-men to give the customary sig- 
 nals before starting away from such a place. ^ If the train does not stop at a. 
 station, the passenger will not be justified in making an attempt to get on. 
 Thus, the plaintiff having purchased his ticket, attempted to get upon tlie cars 
 while slowly passing the station. The platform and ^teps were so full that he 
 could only get upon the lower step. A jerk of the cars threw him off, but he 
 held on to the iron rod and ran along with the cars, endeavoring to recover his 
 position on the step (although the speed of the train was increasing), when he 
 was struck by a platform near the track and was injured. No evidence was 
 given tending to prove facts explaining or justifying this negligent and reckless 
 conduct, and a nonsuit w^as held proper.''' But in cases where the effort of the 
 passenger to board the train does not so plainly demonstrate negligence on his 
 part, the question is properly one for the jury. It cannot be said that under all 
 circumstances an attempt to board a train when in motion will constitute negli- 
 gence as a matter of law.^ 
 
 Eailway companies, in order to afford an opportunity to passengers to leave 
 the cars at their places of destination, are bound to have announced the names 
 of the different stations upon the arrival of the train, and then stop their trains 
 a sufficient length of time to allow passengers to get off without danger or 
 injury to their persons.' But it would seem to be negligence on the part of 
 the servants of the railroad company to announce a station and then stop the 
 train short of such station in the night-time. When the station is called, the 
 
 him, for an injury occasioned by the unsafe contrary principle. The plaintiff, a licensee, 
 
 condition of tlie laml, or of the acce-ss to it, having been injured in the enjoyment of his 
 
 which is known to him and not to them, and privilege of crossing a private bridge, Keat- 
 
 which he has negligently suffered to exist, ing, J., said; "I am utterly unable to dis- 
 
 and has given them no notice of." Carleton cover any duty which the defendants have 
 
 r. Franconia Iron Co., 99 Mass. 216,217. This contracted towards the persons whom the 
 
 rule was properly held applicable, in Tobin plaintiffs represent, or what particular 
 
 V. Portland etc. R. Co., 59 Me. 183, to the case breach of duty is charged." 
 of a hackman who was injured by stepping ' Keating v. New York etc. R. Co., 49 N. 
 
 into a hole in the platform of a railroad sta- Y. 678; s. c. 3 Lans. 469. See also Mitchell v. 
 
 tion. The cases cited by the learned judge Western etc. R. Co., 30 Ga. 22. 
 who delivered the opinion in Doss v. Mis- - Phillips v. Rensselaer etc. R. Co., 49 N. 
 
 souri etc. R. Co. do not warrant the conclu- Y. 177. See also Knight v. Pontchartrain R. 
 
 sion reached in that case. The language Co., 23 La. An. 462; Hubener v. Xew Orleans 
 
 cited from Glllis v. Pennsylvania R. Co., 59 etc. R. Co., 23 La. An. 492 ; Harper v. Erie R. 
 
 I'a. St. 129; s. c 8 Am. L. Reg. (N. S.) 729, Co., 32 N. J. L. 88; Chicago etc. R. Co. v. 
 
 is in its terms limited to the case of a person Scales (Sup. Ct. 111. 1879), 9 Cent. L. J. 167. 
 injured from a defective condition of the ^ Johnson tj. West Chester etc. R. Co., 70 
 
 premises. In Holmes v. North -Eastern R. Pa. St. 357. 
 
 Vo., L. R. 4 Exch. 254; s. c. L. R. 6 Exch. < Southern R. Co. v. Kendrick, 40 Miss. 
 
 123, the injury arose from the same cause, 374; Imhoff v. Chicago etc. R. Co., 20 Wis. 
 
 and the express ground of the decision was 344; Keller v. New York etc. R. Co., 2 Abb. 
 
 that the plaintiff was not a mere licensee, App. Dec. 480; s. c. 17 How. Pr. 102; Dickens 
 
 but, being a consignee of freight, liad a v. New York etc. R. Co., 1 Abb. App. Dec. 
 
 right to be where he was. Gautret v. Eger- 504; s. c. 28 P.arb. 41; New Orleans etc. R. 
 
 ton, L. R. 2 C. P. 371, was evidently cited Co. v. Statham, 42Miss. 607- 
 by mist.Tke, as it establishes precisely the
 
 RAILWAY COMPANIES. 
 
 227 
 
 Time for Passengers to get on and off. 
 
 passengers have a right to infer that the first stop of the train will be at such 
 station.! 
 
 The implied contract to carry safely includes the duty of giving the passengers 
 reasonable opportunity to alight in safety from the train, and a violation of this 
 part of the company's duty is culpable negligence for which an action will lie.^ 
 But although the carrier may have been negligent in this particular, yet, in 
 general, the passenger will not be justified in leaping from the train after it 
 has started, and in the face of obvious danger.^ Circumstances of paramount 
 necessity may exist which will justify a person in leaping from the train while 
 in motion, after the cars have failed to stop a reasonable length of time for the 
 passenger to get off. Thus, in Pennsylvania Bailroad Compann v. Kilgore,* the 
 plaintiff, accompanied by three young children, on arriving at i. r destination 
 ])roceeded to alight; two of the children had done so, and while the plaintiff 
 was still on the train, the cars started, when she sprang upon the platform of 
 the station, on which one of the children had fallen prostrate, and was injured. 
 It was held that her conduct was not such negligence as would prevent her 
 recovery of damages for injuries thus sustained.^ If the motion of the train 
 is so slow that the danger of jumping off would not be apparent to a reason- 
 able person, and the passenger acts under the instructions of the company's 
 brakeman or conductor in so doing, and is injured, then the injury cannot be 
 said to be the result of contributory negligence on the part of the passenger.'' 
 
 1 Central R. Co. v. Van Horn, 38 N. J. L. 
 133. When a railroad train has come to a 
 fall stop for the puqiose of enabling pas- 
 i-engers to alight, and, without notice, the 
 train is suddenly moved, causing injury to 
 those alighting, it is held immaterial, upon 
 the question of negligence, whether such 
 motion is in a backward or forward direc- 
 tion. Milliman v. New York etc. R. Co., 66 
 N. Y. 643; s. c. 6 Thomp. & C. 585. 
 
 - Fairmount etc. R. Co. v. Stutler, 54 Pa. 
 St. 375 ; Roberts v. Johnson, 58 N. Y. 613 ; s. c. 
 5 Jones & Sp. 157 ; Houston etc. R Co. v. Gor- 
 bett, 49 Texas, 573 ; Mulhado v. Brooklyn etc. 
 R. Co., 30 N. Y. 370; Jeffersonville etc. R. Co. 
 V. Parmalee, 51 Ind. 42. A passenger has the 
 right to expect not only that the cars will 
 remain stationary long enough for h m to 
 step from the train, but also that the ser- 
 vants of the defendant will be present to 
 assist him in so doing, if necessary. Jeffer- 
 sonville etc. R. Co. V. Hendricks's Adminis- 
 trator, 26 Ind. 228; s. c. 41 Ind. 49. Contra, 
 New Orleans etc. R. Co. v. Statham, 42 Miss. 
 607. But the servants of a railroad company 
 cannot be expected to act with reference 
 to a passenger's disabilities, unless made 
 known to them. Toledo etc. R. Co. v. Bad- 
 deley, 54 111. 19. If, however, being in- 
 formed, they do so act, the company will 
 be responsible for their negligence in view 
 of such knowledge. Columbus etc. R. Co. 
 V. Powell, 40 Ind. 37. The fact that a man is 
 
 intoxicated does not alone deprive him of 
 the right to ride upon a railway train, nor 
 does it free the company from its duty to 
 render him, as a passenger, due care. Milli- 
 man i\ New York etc. R. Co., 6i N. Y. 642; 
 s. c. 6 Thomp. & C. 585. 
 
 ^ Railroad Co. v. Aspell, 23 Pa. St. 147; 
 Jeffersonville etc. R. Co. v. Hendricks's Ad- 
 ministrator, 26 Ind. 228; Morrison v. Erie R. 
 Co., 56 N. Y. 302; Burrows v. Erie R. Co., 63 
 N. Y. 556 (reversing s. c. 3 Thomp. & C. 44) ; 
 Daraont v. New Orleans etc. R. Co., 9 La. An. 
 441; Dougherty v. Chicago etc. R. Co., 86 111. 
 467; Gavett v. Manchester etc. R. Co. 16 
 Gray, 501 ; Lucas v. New Bedford etc. R. Co., 
 6 Gray, 64; Ginnon v. New York etc. R. Co., 
 3 Robt. 25. But, although it may be mere 
 I'ecklessness for a person to jump fi-om a 
 railroad train when it is in rajtid motion, 
 yet the motion may be so slow that it will be 
 a question for the jury wlieiher it is negli- 
 gence to make a leap from the train, taking 
 into consideration the physical condition of 
 the person so doing, and all the attendant 
 circumstances. Doss v. Missouri etc. R. 
 Co., 59 Mo. 27, 38; Illinois etc. R. Co. v. 
 Able, .59 111. 131. 
 
 ^ 32 Pa. St. 292. 
 
 <• See also Loyd v. Hannibal etc. R. Co., 53 
 Mo. 509, a case in which the facts were iden- 
 tical with those above set out. 
 
 '"' Georgia R. etc. Co. v. McCurdy, 45 Ga. 
 288; Lambeth v. North Carolina R. Co., 66 N.
 
 228 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 But where, in such case, there was a conflict of evidence as to whetlier the 
 person who advised the passenger to jump from the train was a servant of the 
 company, a charge to the effect that it was immaterial who gave the direction, 
 and that it was for the jury to say whether it was prudent for the passenger, 
 acting under the advice so given by anybody, to alight fi'om the train, was held 
 erroneous.' So, where the plaintiff attempted to alight from the train while in 
 motion, with the assistance of another person not a servant of the company, and 
 was injured, it was held that the result demonstrated that the injury arose from 
 the fact that the train was going at such a speed that the attempt ought not 
 to have been made, or the accident was due to the carelessness of the person 
 lending assistance; therefore in neither event could the company be responsible 
 for the injury. 2 
 
 § 17. Trains overshooting or falling short of the Platform of the Station. — 
 It is the duty of servants of the railway company to run their trains so that a 
 passenger shall have a reasonably safe and convenient place for alighting. It 
 frequently happens, however, that from various causes the passenger-coaches are 
 brought to a stand at places where there is no platform or other conveniences 
 for alighting, and injuries result to passengers attempting to get off the train 
 under these circumstances. 
 
 It is commonly alleged, by way of defence, that the passenger was under no 
 obligation to encounter danger in alighting at a dangerous place ; that he might 
 have remained in the train, and sued the company for its breach of contract in 
 failing to put him down at his destination. This view properly prevails in cases 
 where the passenger, to avoid the inconvenience of baiug carried beyond his desti- 
 nation, leaps from a train in rapid motion, as that is a step which no reasonable 
 man would take without expecting the consequences of failure to reach the 
 ground safely to be visited upon himself ; ^ but in cases of the character under 
 discussion the danger of alighting is usually neither so apparent nor real, and, in 
 
 C. 494; Lovett w. Salem R. Co., 9 Allen, 557; advice given. Hazard v. Chicago etc. R. 
 
 Filer V. New York etc. R. Co., 68 N. Y. 124; Co., 1 Biss. 503; Chicago etc. R. Co. v. Ran- 
 
 s. c. 59 N. Y. 351; 49 N. Y. 47; Pennsylvania dolph, 53 111. 510. Information by a conduc- 
 
 R. Co. V. McCloskey's Administrator, 23 Pa. tor of a fieight-lrain to a passenger of 
 
 St. 526; Wyatt v. Citizens' R. Co., 55 Mo. 4S5. mature age, and accustomed to travelling, 
 
 If the conductor or other servant of a rail- that persons sometimes got off at a partic- 
 
 road company, authorized to assist passeu- ular place where the train was not stopped 
 
 gers on and off the train, takes hold of a but the speed slackened, does not require 
 
 passenger and assists him off the train while the passenger to leave the car at such place, 
 
 in motion, the company will be responsible and in tlie event of injury to the passenger 
 
 for any negligence on the part of its ser- in altLMnptiiig to leave, the companj- will 
 
 vant in so doing. If such servant is in- not be re?i)onsible. Chicago etc. R. Co. r. 
 
 formed by the passenger of any disability Hazz.ird, 2o 111. 373. See also Ginnon t-. New 
 
 l.y which he is affected, it is his duty to use York etc. 1!. Co., 3 Robt. 25. 
 
 .'uch care as the condition of the passenger ' Filer v. Xcw York etc. R. Co., 59 N. T. 351. 
 
 requires. Columbus etc. R. Co. v. Powell, 2 Burrows v. Erie R. Co., 63 N. Y. 556 (re- 
 
 40 Ind. 37. The fact that a passenger, in versing s. c. 3 Thomp. & C. 44). 
 
 .•'lighting from the train while in motion, ^ Railroad Co. v. Aspell, 23 Pa. St. 147; 
 
 does so under the advice of the conductor, Jeffersonville etc. R. Co. v. Hendricks's Ad- 
 
 aud receives injury, is not conclusive of the ministrator, 26 Ind. 228; Morrison v. Erie R. 
 
 liability of the railway company. It is a Co., 56 N. Y. 302; Damont v. Xew Orleans 
 
 proper question for the jury whether a rca- etc. R. Co., 9 La. An. 441 ; Dougherty f. Chi- 
 
 sonabie man would have acted upon the cago etc. R. Co., 86 111. 467.
 
 RAILWAY COMPANIES. 229 
 
 Invitation to alight. 
 
 general, the contention that the passenger alights at his peril has not met ^vvith 
 favor. The remarks of Brett, J., though made in a case not presenting the 
 circumstances under discussion,' have gi-eat force. He said: "It has been 
 argued that no amount of inconvenience, if there be no actual peril, will justify a 
 person incurring danger in an attempt to get rid of it. I confess I am not pre- 
 pared to go to that length. I think if the inconvenience is so great that it is 
 reasonable to get rid of it by an act not obviously dangerous, and executed with- 
 out carelessness, the person causing the inconvenience by his negligence would 
 be liable for any injury that might result from an attempt to avoid such incon- 
 venience." 2 And Chief Baron Kelly's language in his dissenting opinion in Siner 
 V. Great Western Railway Company ^ is much to the same effect, and is probably 
 now recognized as a more correct exposition of the law than the views of the 
 majority of the court in that case. Said he : "I am clearly of opinion, however, 
 that a railway company are not entitled to expose any passenger to the necessity 
 of choosing between two alternatives, neither of which he could lawfully be 
 called on to choose, namely, either to go on, or to take his chance of danger and 
 jump out; and if they do so, the choice is made at their peril. I agree that if it 
 can be clearly seen by the passenger that the act must be attended with injury, 
 it may then be fairly contended that he is not entitled to choose this obviously 
 and certainly dangerous alternative. * * * Yet when he is called upon to 
 choose between two evils to which the neglect of the company has expased him, 
 and one of which presents some degree of danger, but not such as he may not 
 without imprudence encounter, if in consequence of his adopting that alternative 
 he suffers any injury, that injury is the proper subject of an action against the 
 company." * 
 
 § 18. Invitation to alight, express or implied. — In cases of this kind, when 
 it can be shown that the passenger received an express invitation to alight, or an 
 intimation that no better opportunity would be offered, although the carriages 
 of the train were in an inconvenient or slightly dangerous position for this pur- 
 pose, the passenger is, in general, justified in making the attempt. Thus, in Foy 
 V. London, etc. Bailway Company,^ a frequently cited case, the facts were that 
 on the arrival of the train at the London terminus of the road, the whole of the 
 train by which the plaintiff travelled was unable to come up to the platform, in 
 consequence of two trains standing ahead of it on the track, and the plaintifi 
 was requested by a porter to alight at a spot a little below the end of the plat- 
 form. The distance from the floor of the carriage to the ground was about 
 three feet, and there were two steps leading down from the carriage. The lady 
 placed her foot upon the first step, took the hand of a gentleman, jumped down, 
 and sustained a serious spinal injury. The jury having found that the company 
 
 • Adams r. Lancashire R. Co., L. R. 4 C. waiikee etc R. Co., 24 Wis. 578,586. See also 
 p. 739. NichoUs v. Great Southern R. Co., Irish Rep. 
 
 = L. R. 4 C. P. 739. See these remarks ap- 7 C. L. 40; Thompson v. Belfast etc. R. Co., 
 
 proved in Gee v. Metropolitan R. Co., L. R. Iri'h Rep. 5 C. L. 517; Robson v. London etc. 
 
 8 Q. B. 161, 173; and in Robson v. North- R. Co., L.R. 10 Q.B. 271; Cockle v. London etc. 
 
 Eastern R. Co., L. R. 10 Q. B. 271. R. Co., L. R. 5 C. P. 457; Weller v. London 
 
 3 L. R. 3 Exch. 150, 156. etc. R. Co., L. R. 9 C. P. 136. 
 
 * This language received the express ap- » 18 C. B. (N. S.) 22); s. c. 13 Week. Itcp. 
 proval of the court in Delamatyr v. Mil- 293; 11 L. T. (N. S.)60li.
 
 230 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 were guilty of negligence in not providing reasonable means for alighting, and 
 that the lady had not by any misconduct contributed to the injury, the court held 
 that there was evidence to warrant their finding, and refused to gi-ant a new 
 trial or an appeal. 
 
 "What will constitute an implied invitation to alight is a fruitful source of con- 
 troversy. It is sometimes contended that the train-men calling out the name of 
 a station, on approaching it, is an invitation to alight as soon as the train has 
 come to a full stop. But this cannot be true as a proposition of law. Indeed, 
 in some cases it has been held that this circumstance was not even evidence of an 
 invitation to alight. Said Blackburn, J. : " Calling out the name of the station, 
 I understand, and have always understood, to mean this : that it is an intimation 
 to all who ai'e ti-avelling by the train that the station at which the train is about 
 to stop is that particular station. * * * Calling out the name of a station is 
 not an invitation to alight." ^ This same distinguished judge, at nisi prim, 
 adhered to this opinion in the case of Bridges v. North London Bailway Company ^ 
 The facts of this case were, that the plaintiff 's husband was seated in the last 
 carriage of a railway train. Before reaching the station at which he was to 
 alight, the train had to pass through a tunnel. This tunnel was adjacent to the 
 station, and on this occasion, when the train stopped, the carriage in which the 
 plaintiff's husband was seated remained inside the tunnel for a considerable 
 distance. There was no platform in the tunnel opposite where this carriage 
 stopped, but instead, an irregular heap of hard rubbish. On clear nights the 
 tunnel was only imperfectly lighted, and on this night, being filled with steam, it 
 was practically without light. The name of the station was called out as the 
 train stopped. A passenger got out of the next car forward of that in which 
 the plaintiff 's husband was riding, and hearing a groaning, went farther back 
 into the tunnel and found him lying on the rubbish, having received a broken 
 leg and other injuries in alighting, from the effects of which he died. After 
 alighting, the witness heard the warning, " Keep your seats," and shortly after- 
 wards the train moved on. Mr. Justice Blackburx was of opinion that there 
 was no evidence of negligence on the part of the defendants, and directed a 
 nonsuit; but the jury expressing a strong opinion to the contrary, a verdict was 
 taken for the plaintiff, and damages assessed. The nonsuit was then entered, 
 but leave reserved to move to enter the verdict for the plaintiff for the damages 
 assessed. A rule was accordingly moved for, and, after argument in the Queen's 
 Bench, was refused.^ On appeal to the Exchequer Chamber, the facts were stated 
 in a "case," power being reserved to the judges to draw inferences of fact. 
 The judgment of the court below was affirmed by four judges against three.* 
 An appeal was then taken to the House of Lords. ^ The judges were summoned, 
 and opinions were delivered by five of them, they being unanimously of the 
 opinion that there was evidence of negligence on the part of the defendants to 
 go to the jury. The Loi'ds laid down no rule as to what might be the conse- 
 quence, as a positive rule of law, of calling out the name of the station by the 
 company's servants, and concurred in the opinion of the judges as to the evidence 
 
 1 Lewis 17. London etc. R. Co., L. R. 9 Q. L. R. 7 H. L. 213; 43 L. J. (Q. B.) 151; 23 
 B. 66; s. c. 43 L. J. (Q. B.) S. Week Rep. 62; 30 L. T. (N. S.) S44. 
 
 2 L. R. 6Q. B. 377; s. c. 40 L. J. (Q. B.) 18S; ^ l. R. 5 C. P. 4o9, note (5). 
 
 * L. R. 6 Q. B. 377. 6 L. R. 7 H. L. 213.
 
 KAILWAY COMPANIES. 231 
 
 Invitation to alight. 
 
 ■of negligence on the part of the defendants. The judgment of the Court of 
 Exchequer Chamber was therefore reversed, and a verdict was entered for 
 the plaintiff for the damages assessed.* 
 
 In Weller v. London, etc. Bailway Company,"^ on the approach of a train to the 
 station, a porter called out the name of the station, and the train was brought to 
 a staud-still. Hearing carriage doors opening and shutting, and seeing a person 
 alight from the next carriage, the plaintiff (a season-ticket holder, accustomed to 
 stop there) stepped out of the carriage in which he was seated, which had over- 
 shot the platform, and falling upon an embankment, was injured. It was night, 
 and there was no light near the spot, and no caution was given, nor any thing 
 done to intimate that the stoppage was a temporary one only, or that the train 
 was to be backed. Brett, J., said: ^ " I agree that to call out the name of the 
 station before the train has come to a stand-still is no evidence of negligence on 
 the part of the company. I also agree that merely overshooting the platform is 
 not negligence. But if the porter has called out the name of the station, and 
 the engine-driver has overshot the station, and the train has come to a stand-still, 
 the company's servants are guilty of negligence if they do not warn passengers 
 not to alight. At all events, the jury may from the facts infer negligence." * 
 
 Conduct other than calling out the name of the station may be taken as evi- 
 dence of an invitation to alight. In Praeger v. Bnstol, etc. Bailway Company,^ the 
 plaintiff was seated in the last compartment of the last carriage. The train 
 arrived at a dimly lighted station on a dark night. A guard opened the door, ami 
 said nothing. The platform did not run alongside the track the whole length of 
 the train, but curved away from the line at the point where the plaintiff's carriage 
 stood. The plaintiff stepped out, expecting to alight upon the platform, but fell 
 between the carriage and the platform, and was injured. On these facts, Cock- 
 
 1 Mr. Baron Pollock, in his opinion before See Whittaker v. Manchester etc. R. Co., L. 
 
 the Lorrts (at p. 224), in regard to what R. 5 C. P. 461, note (3) ; Petty v. Great West- 
 
 etfect, iu general, was to be given to calliiia: ern R. Co., L. R. 5 C. P. 461, note (1) ; Scott 
 
 out the name of a station, concurred iu the v. Dublin etc. R. Co., Irish Rep. 11 C. L. (N. 
 
 opinion of Mr. Justice Willes in the same S.) 377; Nicholls v. Great Southern etc. R. 
 
 case in the Exchequer Chamber: "It is an Co., Irisli Rep. 7 C. L. 40. 
 announcement by the railway officers that - L. R. 9 C. P. 126; s. c. 43 L.J. (C.P.) 137; 
 
 the train is approaching or has arrived at 22 Week. Rep. .302; 29 L. T (N. S.) 888. 
 the platform, and that the passengers may ^ L. R. 9 C. P. 132. 
 
 get out when the train stops at the platform, * To the same effect, see Taber v. Dela 
 or under circumstances induced and caused ware etc. R. Co., 71 N. Y. 489; Central R. Co. 
 by the company, in wbich the man reason- v. Van Horn, 38 N. J. L. 133; Columbus etc. 
 ;ibly supposes he is getting out at the place R. Co. v. Farrell, 31 Ind 408. Contra, Pabst 
 where the company intended him to alight." v. Baltimore etc. R. Co., 2 McArthur, 42. 
 Mr. Justice Denman, while laying down no But this last decision is based upon the de- 
 general rule on the subject, considered that cision of the Court of Exchequer Chamber 
 " the jurors were entitled to consider that in Bridges v. London etc. 11. Co. (L. R. 6 Q. 
 fact as one of importance in the case." Said B. .377), which was, however, subsequently 
 Mr. Justice Brett: " That seems to me to reversed in the House of Lords (L. R. 7. H. 
 be a matter of experience of life and habits, L. 213), as above stated. 
 
 which is solely for the deteimination of the 'MS., 24 L. T. (N. s.) 105. Stated at 
 
 jury." length in Cockle v. London etc. R. Co., L. R. 
 
 In other cases, it has been held that it Is a 7 C. P., at p. 323, by Mr. Justice Cockbnrn, for 
 
 question for the jury whether (;alling out the reason that, although it was an important 
 
 the name of a station .imounts, under all the case, it had not found its way into the regu- 
 
 circuuistances, to an invitation to alight. lar series of reports.
 
 232 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 BURN, C. J., said: "He got out on the invitation of the guard who opened the 
 door, M'hich implied an invitation to alight, and, I think also, to alight with 
 safetj'." Less than this was held to constitute an implied invitation to alight, in 
 Cockle v. London, etc. Bailway Company.'^ The relative situations of the platform 
 and carriage were the same as in the previous case. The night was very dark, 
 and although the rest of the station was well lighted, the place where the last 
 carriage stopped, in which plaintiff rode, was not. The train was brought to a 
 final stand-still, and was not again set in motion until it renewed its onward 
 journey. The plaintiff opened the cari'iage door, and, stepping out, fell into 
 the space between the carriage and the platform, and was injured. The court of 
 Exchequer Chamber, overruling the decision of the equally divided judges of 
 the Court of Common Pleas in this case,^ held that the bringing up of the train 
 to a final stand-still, for the purpose of the passengers alighting, amounted to an 
 invitation to alight; at all events, after such time had elapsed that the passenger 
 might reasonably infer tliat it was intended that he should get out if he pur- 
 posed to alight at that particular station.* 
 
 Sometimes the conduct of the passenger in alighting at such a place is so 
 manifestly contrary to the dictates of common prudence that his claim for dam- 
 ages for injuries received cannot be entertained. Thus, in Harrold v. Great 
 Western Baihoay Company,*' the carriage in which the plaintiff was riding was 
 carried beyond the station, and stopped upon an embankment above a roadway. 
 The night was rather dark, and there was no light in the carriage, and no 
 stationary light on the platform; nor was there any fence on the top of the 
 embankment, between it and the roadway underneath. The plaintiff was aware 
 that his carriage had overshot the platform, and, without waiting to see whether 
 it would be backed up to the platform, got out of the carriage in the dark, and 
 in so doing missed his footing and fell forward over the embankment into the 
 roadway beneath. So in Lewis v. London, etc. Bailway Company,^ the plaintiff 
 saw that her carriage was not alongside the platform, but at the edge or comer 
 of it, and that the engine and four carriages further forward were beyond the 
 platform. Being well acquainted with the place, when the train stopped she 
 immediately arose from her seat and prepared to get out with the assistance of a 
 fellow-passenger. While alighting, the train began to move backward with a 
 violent jerk, for the purpose of bringing all the carriages alongside the platform. 
 The plaintiff was thrown from the steps of the carriage upon the end of the 
 platfonn, and injured. The court held that from all the circumstances in the case 
 the plaintiff must have believed that the train which had passed the platform 
 would come back again, and that there was no evidence from which the jury 
 could have reasonably found negligence in the company's servants. Where a 
 railroad train is stopped at night merely for the purpose of allowing another 
 train to pass, and no notice is given by servants of the company that passengers 
 may leave the cars, they are not entitled to do so ; and it is no justification that a 
 
 1 L. R. 7 C. P. 321 ; s. c. 41 L. J. (C. P.) 140. sion was reached. See also Xicholls v. Great 
 
 2 L. R. 5 0. P. 457 ; 8. c. 39 L.J. (C. P.) 226; Southern R. Co., Irish Rep. 7 C. L. 40; Thomp- 
 27 L. T. (N. S.) 320; 20 Week. Hep. 754. son v. Belfast etc. R. Co., Irish Rep. 5 C. L. 
 
 3 In the case of Robson v. North- Eastern 517. 
 
 R. Co., L. R. 10 Q. B. 271, presenting sub- * 14 L. T. (N. s.) 440. 
 
 6tantially the same facts, the same couclu- ^ L. R. 9 Q. B. 06; s. c. 43 L. J. (Q. B.) 8.
 
 RAILWAY COMPANIES. 
 
 Injuries to Passengers on the Track. 
 
 passenger was misinformed by some person not in the emi3lo3meut of the com 
 pany that he must go and have his baggage passed at a custom-house, supposed 
 to have been reached by the train, or that the train was near a passenger-station 
 which was not the place of his destination.^ 
 
 The case of Siner v. Great Western Bailway Company,'^ decided by the Court 
 of Exchequer Chamber, affirming the decision of the court below, is probably 
 more favorable to the defendant in this class of cases than any other in the 
 reports. The circumstances were that an excursion train in which the plain- 
 tiffs (husband and wife) were passengers, on account of its length, overshot 
 the platform when it arrived at its destination. It was then daylight. The pas- 
 sengers were not warned to keep their seats, nor was any offer made to back- 
 the train to the platform, nor was it in fact at all so backed, nor did it move 
 until it started on its journey. After waiting a short time, the husband, follow- 
 ing the example of other passengers, alighted without any request to the com- 
 pany's servants to back the train, or any communication with them. The wife, 
 standing on the iron step of the carriage, took both his hands and jumped down, 
 and in so doing strained her knee. There was a foot-board between the iron 
 step and the ground, which she did not use ; but there was no evidence of any 
 carelessness or awkwardness in the manner of descent, except such as might be 
 inferred from the above facts. It was held by both courts that there was no 
 evidence for the jury of negligence in the defendants, and that the accident was 
 entirely the result of the plaintiffs' own act.^ 
 
 § 19. Injuries to Passengers on the Track. — Although it is true, as a general 
 rule, that a person who goes upon a railroad track is bound to know that it is a 
 place of danger, and to use his eyes and ears constantly for his protection, the 
 neglect of which precaution is negligence per se,* yet this rule would seem not 
 to apply where the arrangements of the railroad company are such that it is neces- 
 sary for the passenger to pass over tracks in order to take and leave the trains. 
 In such case, the raili'oad company are under a duty, by virtue of their contract for 
 transportation, to provide safe and convenient means of entrance to and depart- 
 ure from their trains.^ Where, therefore, there is such a conflict in the running 
 arrangements of the road that at the same time passengers are getting on or off 
 a train at a station where they must cross over tracks in order to do so, trains 
 are run over these tracks, this circumstance, especially where no seasonable 
 notice is given of the approach of such trains, is an act of negligeuce on the 
 part of the company, and has been justly repi'obated." 
 
 1 Frost V. Grand Trunk etc. R. Co., 10 < Railroad Co. r. Houston, 9.5 U. S. 697; s. c. 
 
 .Mien, 387. 6 Cent. L. J. i;i2 ; Bancroft v. Boston etc. R. 
 
 ii L. R. 3 Exch. 150; a. c. L. R. 4 Exch. 117; Co., 97 Mass. 275; Wilcox v. Rome etc. R. 
 
 37 L. J. (Exch.) 98; 17 Week. Rep. 417. Co., 39 N. Y. 35S; Ernst v. Hudson etc. R. Co., 
 
 3 Similar cases subsequently decided are 39 N. Y. 61 ; Sutton v. Delaware etc. R. Co., 
 
 to the contrary. Cockle v. London etc. R. 66 N. Y. 243; Mulherrin v. Delaware etc. R. 
 
 Co., L. R. 5 C. P. 457; Thompson V.Belfast Co., 81 Pa. St. 3GC; Illinois etc. R. Co. v. 
 
 etc. R. Co., Irish Rep. 5 C. L. 517 ; Robson v. Hetherington, 83 III. 510 ; North Pennsylvania 
 
 London etc. R. Co., L. R. 10 Q. B. 271 ; Nich- R. Co. v. Heileman, 49 Pa. St. 60. 
 oils V. Great Southern R. Co., Irish Rep. 7 C. ^ Pennsylvania R. Co. v. Zebe, 33 Pa. St. 
 
 L. 40; Welles v. London etc. R. Co., L. R. 9 318; Klein v. Jewett, 26 N. J. Eq. 474. 
 C. P. 126; Delamatyr v. Chicago etc. R. Co., ^ Klein v. Jewett, supra; Terry v. Jewett, 
 
 24 Wis. 578. 20 Alb. L. J. 393; Chiciigo etc. R. Co. v. Wil
 
 2M LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 § 20. Degree of Care required in Transportation of Passengers on Freight- 
 Trains. — When a railroad company chooses to cari-y passengers upon its freight- 
 trains, the general rule of responsibility for their safety is in no degree relaxed, 
 except that the passenger taking the freight-train accepts it and travels on it 
 acquiescing in the usual incidents and conduct of a freight-train managed by 
 prudent and competent raen.^ If the passenger will be inconvenienced more by 
 submitting to the discomforts and dangers incident to this mode of travel than 
 by waiting for the regular passenger-trains, he should adopt the latter course, as 
 passage is granted upon these trains equally for his accommodation and the 
 company's profit. 
 
 The company is held to as strict an accountability for the negligence of its 
 employees in the management of a train with a caboose attached in which pas- 
 sengers are seated, as the law imposes in the transportation of passengers on 
 trains specially provided for that purpose. * It cannot, however, be expected 
 that a company will provide its freight-trains with all the conveniences and 
 safeguards against danger which may propei-ly be demanded of it in the con- 
 struction and operation of cars designed solely for the transportation of passen- 
 gers, viz., air-brakes, a bell-cord connecting the engine with the entire length of 
 the train, and a brakeman upon every car.^ Such a train is deficient in these 
 and many other particulars, and properly so. Thus, in Chicago, etc. Bailroad 
 Company v. Hazard,^ the plaintiff came upon the rear platform of the caboose 
 with the intention of getting off the train while it was moving slowly through 
 the town where he resided, as it was uncertain whether the train would stop 
 there. While in this position, the caboose was jerked violently on account of 
 the engineer increasing the speed of the train. The plaintiff was violently 
 thrown over the end of the caboose, on account of the lack of a chain or bar in 
 the centre of the rear platform. Breese, J., held that this jerking was inevitable 
 in the operation of a freight-train, and not ascribable to negligence, want of skill, 
 or improper management of any agent or employee of the defendants ; and that 
 it was not negligence that there was no chain-guard upon the rear of the caboose, 
 as there was no evidence that such an attachment was ever used on a caboose- 
 car. The case was afterwards dismissed in the State court, and an action com- 
 menced in the Circuit Court of the United States for the Northern District of 
 Illinois, in which Davis, J., submitted to the jury the question of the defendants' 
 negligence in each of the foregoing particulars.* 
 The ordinary rule that the company must provide safe and convenient means 
 
 son, 63 111. 167 ; Armstrong v. New York etc. « Chicago etc. R. Co. v. Hazard, 26 111. 373 ; 
 
 R. Co., 66 Barb. 437; Keller v. New York etc. a. c. 1 Blss. 503; Ohio etc. R. Co. v. Dicker- 
 
 R. Co., 24 How. Pr. 172; Whalen v. St. Louis son, 59 lud. 317 ; Edgerton v. New York etc. 
 
 etc. R. Co., 60 Mo. 323; The State v. Grand R. Co. 35 Barb. 389; s. c. 39 N. Y. 227; Ohio 
 
 Trunk R. Co., 58 Me. 176 ; Dublin etc. R. Co. etc. R. Co. v. Muhliiig, 30 111. 9 ; Ohio etc. 
 
 i'. Slattery, 3 App. Cas. 1155; s. c. Irish Rep. R. Co. v. Selby, 47 Ind. 471; Fliun v. PhUa. 
 
 10 C. L. 256; Irish P^ep. 8 C. L. 531 ; 39 L. T. etc. R. Co., 1 Houst. 469. 
 
 (N. 8.)265; 19 Alb. L. J. 70. But see Falkiner » Hazard v. Chicago etc. R. Co., supra; 
 
 V. Gt. Southern R. Co., Irish Rep. 5 C. L. 213. Indianapolis etc. R Co. v. Horst, 93 U. S. 
 
 1 Hazard v. Chicago etc. R. Co., 1 Biss. 291, 297; s. c 15 Alb. L. J. 61; Indianapolis 
 
 .503; Indianapolis etc. R. Co. v. Horst, 93 U. etc. R. Co. ?>. Beaver, 41 Ind. 493. 
 
 S. 291; Ohio etc. R. Co. v. Uickerson, .59 Ind. * Supra. 
 
 31- ■ 1 Biss. 503.
 
 STAGE PROPRIETORS. 235 
 
 The Law as laid down by Mr. Justice Story. 
 
 of getting on and off trains ^ obviously has but slight application to the case of 
 u passenger travelling upon a freight-train. The distinction is well pointed out 
 by Bell, J., in Murchw. Concord Bailroad Company:'^ "The party who makes 
 an arrangement to be carried on a baggage-wagon or a freight-car impliedly 
 agrees to accept and be satisfied with such accommodations, as regards car- 
 riages and seats, and places of entering and leaving the carriages, as may be 
 found in the usual course of the business. If the cars, at the time of his agree- 
 ing for his passage and taking his seat, are at a merchandise-depot, he is to be 
 satisfied with such means of entering the cars as are provided for rolling in the 
 cask or box on which he is to be contented to take his seat if nothing better 
 offers. If the cars are at the time standing upon a part of the track where there 
 is no provision for landing or receiving either goods or passengers, he is to be 
 satisfied with such means and facilities as may casually be within his reach. 
 The company, considered as OAvners of the road or as carriers, are not, in either 
 case, bound to make landings, or any provision whatever for the reception or 
 discharge of passengers where none are expected to be. The duties and obliga- 
 tions of parties are construed reasonably, with reference to the nature of their 
 business. We understand that the freight-trains upon these roads sometimes 
 amount to fifty or more cars, and extend in length to two thousand feet or more, 
 and that it depends upon what is, in this respect, mere matter of accident, the 
 arrangement of the loading, where a place may be found for the casual passen- 
 ger who may be forced to adopt this way of ti-avelling. It may be at any part of 
 the train, and provision must be made, if at all, for a safe entrance at every part 
 of the train and at every part of the road where a passenger may desire to be put 
 on board. A rule like that must be equivalent to a refusal to allow any passen- 
 gers to be carried in this mode, unless they are at hand to take their places at 
 the regular depots where the trains are loaded. It would be of mischievous 
 consequence to adopt a rule which would deprive the railroad companies of the 
 power to accommodate those whose occasions compel them to resort to these 
 undesirable modes of conveyance."^ 
 
 rv. Stage Proprietors. 
 
 § 21. Duties of Stage Proprietors — The Law as laid down by Mr. Justice 
 Story. — We are indebted to Mr. Justice Story for a very clear and correct 
 exposition of the duties of stage proprietors. It will be remembered that this 
 eminent jurist was required, as a justice of the Supreme Court of the United 
 *State!S, to hold a Circuit Court in each of the New England States. This was 
 before the era of railroads, and he was hence obliged to travel from circuit to 
 circuit in the only means of overland conveyance of those days, — a stage-coach 
 ilrawn by horses. No doubt he had personally a pointed experience of the 
 dangers to which ti-avellers are subjected by reason of stage-owners employing 
 in their business unsafe or defective vehicles or tackle, untrained horses, and 
 incompetent, drunken, or negligent drivers. This branch of jurisprudence, 
 which we m.ay here conveniently denominate "stage-coach law," therefore had 
 •A peculiar realism to his mind; and we have no doubt that we are indebted to 
 
 ' Supra, § 16. '^ 29 N. H. 9, 42. Co., m Barb. .30; Alleti<ler v. Chicago etc. R. 
 
 3 Compare Dillaye v. New York etc. R. Co., 37 Iowa, 264.
 
 236 LIABILITY OF THE CARRIER FOE NEGLIGENCE. 
 
 Notes. 
 
 this circumstance for the stringent rule of the American courts, which puts upon 
 carriers of passengers the highest degree of care, skill, and foresight consistent 
 with the carrying on of their business. In his admired work on Bailments, that 
 eminent judge thus sums up the duties of such carriers: ^ — 
 
 "In the next place, they are bound to provide coaches reasonably strong and 
 sufficient for the journey, with suitable harness, trappings, and equipments ; and 
 to make a proper examination thereof previous to each journey.^ In other 
 terms, they are bound to provide roadworthy vehicles, suitable for the safe 
 transportation of the passengers. If they fail in any of these particulars, and 
 any damage or injury occurs to the passengers, they will* be responsible to the 
 full extent thereof.^ Hence it has been held that if there is any defect in the 
 original construction of a stage-coach, — as, for example, in an axletree, — 
 although the defect be out of sight, and not discoverable upon a mere ordinary 
 examination, yet if the defect might be discovered by a more minute examina- 
 tion, and any damage is occasioned to a passenger thereby, the coach proprietors 
 are answerable therefor.* The same rule will apply to any other latent defect 
 which might be discovered by more minute examination and more exact dili- 
 gence, whereby the work is not roadworthy, and a damage thereby occurs to 
 any passenger. In this respect there does not seem to be any difference between 
 the case of a coach which is not roadworthy and of a ship which is not seaworthy, 
 as to the implied obligations of the owner. ^ 
 
 " In the next place, they are bound to provide careful drivers, of reasonable 
 skill and good habits, for the journey, and to employ horses which are steady, and 
 not vicious, or likely to endanger the safety of the passenger.^ In the pithy lan- 
 guage of an eminent judge, it may be said that 'the coachman must have 
 competent skill; he must be well acquainted with the road he undertakes to 
 drive ; he must be provided with steady horses, a coach and harness of suffi- 
 cient strength and properly made, and also with lights by night. If there is the 
 least failure in any of those things, the duty of the coach proprietors is not ful- 
 filled, and they are responsible for any injury or damage that happens.' ' 
 
 "In the next place, they are bound not to overload the coach, either with pas- 
 sengers or with luggage ; and they are to take care that the weight is suitably 
 adjusted, so that the coach is not top-heavy and made liable to overset.^ 
 
 1 Story on Bail. (4th ed.), §§ 592-594, 598, 80; Camden etc. R. Co. v. Burke, 13 Wend. 
 600-602. 611, 627; Hollister v. Nowlen, 19 Wend. 234; 
 
 2 Citing Bremner v. Williams, 1 Car. & P. Cole v. Goodwin, 19 Wend. 251. 
 
 414; Crofts v.Waterhouse, 3 Bing. 321; Jones "^ Citing Waland v. Elkins, 1 Stark. 272; 
 
 r. Boyce, 1 Stark. 493; Christie v. Griggs, 2 Christie v. Griggs, 2 Camp. 79; Harris v. 
 
 Camp. 80; 1 Bell's Comra. (5th ed.) 462; Sharp Costar, 1 Car. & P. 636; Crofts v. Water- 
 
 V. Grey, 9 Bing. 457 ; Camden etc. R. Co. v. house, 3 Bing. 321 ; Stokes v. Saltonstall, 13 
 
 Burke, 13 Wend. 611, 627, 628. Pet. 181 ; Hall v. Connecticut Steamboat Co., 
 
 3 Citing Aston v. Heaven, 2 Esp. 533; 1 13 Conn. 319. 
 
 Bell's Comm. (5th ed.) 462,463; Sharps. Grey, ' Per Best, C. J., in Crolts v. Waterhousc, 
 
 9 Bing. 457; Camden etc. R. Co. r. Burke, 13 3 Bing. 314, 321; 1 Bell's Comm. (5th ed.) 
 
 Wend. 611, 627, 628. 462. 
 
 * Citing Sharp v. Grey, 9 Bing. 457; Chris- « Citing Long v. Home, 1 Car. & P. 612; 
 
 tie V. Griggs, 2 Camp. 80. Israel r. Clarke. 4 Esp. 259; Aston v. Heav- 
 
 s Citing Sharp v. Grey, 9 Bing. 457; Dig., en, 2 Esp. 533; Heard r. Mountain, 5 Petersd. 
 
 Lib. 19, tit. 2, 1. 19, § 1; Pothier's Pand., Lib. Abr.. tit. " Carriers," 54; 1 Bell's Comm. (5th 
 
 19, tit. 2, note 63; Christie v. Griggs, 2 Camp. ed.) 462.
 
 STAGE PROPRIETORS. 237 
 
 The Law as laid down by Mr. Justice Story. 
 
 "Tliey are bound to make use of all the ordinary precautions for the safety of 
 passengers on the road.' This involves a consideration of the duties of the 
 coachman in driving on the road. If he is guilty of any rashness, negligence, or 
 misconduct, or if he is unskilful, or deviates from the acknowledged custom of 
 the road, the proprietors will be responsible for any injury resulting from h s 
 acts.'^ Thus, if the coachman drives with reins so loose that he cannot govern 
 his horses, the proprietors of the coach will be answerable .^ So, if there is dan- 
 ger in any 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.* So, if any accident happens from his racing 
 against other coaches ; or from his driving so rapidly over the common road as 
 amounts to rashness ; or, a fortiori, from his driving immoderately over a dark 
 and dangerous road; or from his taking too many passengers for the size and 
 strength of his coach.'' In short, he must in all cases exercise a sound and rea- 
 sonable discretion, in travelling on the road, to avoid dangers and difficulties ; 
 and if he omits it, his principals are liable.* The liability of the coach proprie- 
 tors will be the same, although the injury to the passenger is caused by his own 
 act, — as, by leaping from the coach, — if there is real danger, and it arises from 
 the want of due skill or from the careless conduct of the coachman.* And it will 
 not make any difference in the case, that, by such attempt to escape, the passen- 
 ger has increased the peril, or even occasioned the coach to upset, and has 
 thereby caused the Injury to himself, if the want of proper skill or care in the 
 coachman has placed the passengei'S in a state of peril, and there was reasonable 
 ground for supposing that the coach would thereby be upset.'" 
 
 " In all cases, the coach proprietors are bound to carry the passengers to the 
 end of the journey, and to put them down at the usual place of stopping; and 
 if that is an inn-yard, it is not sufficient to put them down on the outside of 
 the gateway of the inn." If they agree to take a passenger to a particular place, 
 this also becomes obligatory on them.'^ If the custom of the coach is to carry 
 the passengers to their own houses or lodgings in a particular place, that must 
 be conformed to. 
 
 "Next, as to the liability of passenger-carriers. This naturally flows from 
 their duties. As they are not, like common carriers of goods, insurers against 
 all injuries except by the act of God or by public enemies, the inquiry is natu- 
 
 ' Citing 1 Bell's Comm. (5th ed.) 462. and notes; Israel v. Clarke, 4 Esp. 259; 
 
 2 Citing Stokes v. Saltonstall, 13 Pet. 181; Stokes v. Saltonstall, 13 Pet. 181. 
 
 3 Kent's Conim. (4th ed.) 601, 602; Hall v. " Citing Jackson v. Tollctt, 2 Stark. 3"; 
 
 Connecticut Meuniboal Co., 13 Conn. 319. Stokes v. Saltonstall, 13 Pet. 181, 192, 193; 2 
 
 3 Citing Aston?;. Heaven, 2Ef'l).53:5; Stokes Kent's Comm. (4th ed.) GOl, 602; 1 Bell's 
 ». Saltonstall, 13 Pet. 181, 191, 192. Comm. (5th ed.) 4G2; Hall V.Connecticut 
 
 < Citing Dudley v. Smith, 1 Camp. 167; 1 Steamboat Co., 13 Conn. 319. 
 
 Bell's (;omm. (.Jih ed ) 463 and notes. " Citing Jones v. Boyce, 1 Stark. 493; 
 
 5 Citing Wordsworth u.VVillan, 5 Esp. 273; Crofts r. Waterhouse, 3 Ring. 321; Stokes 
 
 Waland v. Elkins, 1 Stark. 272. v. Saltonstall, 13 Pet. 181, 191. 
 
 <'• Citing Maybew v. Bojxe, 1 Stark. 423; "* Citing Stokes v. Saltonstall, 13 Pet. 181, 
 
 Dudley v. Smith, 1 Camp. 167; 1 Bell's 191,192. 
 
 Comm. (5th ed.) 462 and note. " Citing Dudley v. Smith, 1 Camp. 167. 
 
 7 Citing 1 Bell's Comm. (5th ed.) 462, 4G3, '- Citing Ker v. Mountain, 1 Esp. 27.
 
 238 LIABILITY OF THE CARUIER FOR NEGLIGENCE. 
 
 Notes. 
 
 rally presented, what is the nature and extent of their responsibility? ^ It is 
 certain that this undertaking is not an undertaking absolutely to convey safely. 
 But although they do not warrant the safety of the passengers at all events, yet 
 their undertaking and liability go to this extent, that they and their agents possess 
 competent skill, and that they will use all due care and diligence in the perform- 
 ance of their duty.^ But in what manner are we to measure this due care and 
 diligence? Is it ordinary care and diligence, which will make them liable only for 
 ordinary neglect? Or is it extraordinary care and diligence, which will render 
 them liable for slight neglect? As they undertake for the carriage of human 
 beings, whose lives and limbs and health are of great importance as well to the 
 public as to themselves, the ordinary principle in criminal cases, where persons 
 are made liable for personal wrongs and injuries arising from slight neglect, 
 would seem to furnish the true analogy and rule. It has been accordingly held 
 that passenger-carriers bind themselves to carry safely those whom they take 
 into their coaches, 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 passenger-carriers, not being insurers, are not responsible for accidents 
 where all reasonable skill and diligence have been employed. When every thing- 
 has been done which human prudence, care, and foresight can suggest, accidents 
 may happen. The lights may in a dark night be obscured by fog; the horses 
 may be frightened ; the coachman may be deceived by the sudden alteration of 
 objects on the road ; the coach may be upset accidentally by striking another 
 vehicle or by meeting with an unexpected obstruction; or from the intense 
 severity of the cold, the coachman, although possessed of all proper skill, and 
 taking all due and reasonable care, may at the time become physically incapable 
 of managing his horses or of otherwise doing his duty.* In all these and the 
 like cases, if there is no negligence whatsoever, the coach proprietors are 
 exonerated." * 
 
 The language employed in these sections is traceable in many subsequent 
 judicial opinions, ^ and in two cases they have been quoted at length as embody- 
 ing the law on the subject.' 
 
 § 22. Duty to furnish Competent Drivers. — If, with this measure of duty 
 imposed upon him by law, a driver gets sick so as to be unable to proceed on a 
 journey, an exigency has arrived which it was the duty of the proprietor to 
 
 1 Citing Stokes v. Saltonstall, 13 Pet. 181, livered by Mr. Justice Barbour, will be 
 
 191; Sharp v. Grey, 9 Bing. 457. found to embrace and to exhaust the learn - 
 
 - Citing Harris v. Costar, 1 Car. & P. 636; ing applicable to it. See also Camden etc. 
 
 Crofts V. Watcrhouse, 3 Bing. 321 ; Stokes v. R. Co. v. Burke, 13 Wend. 611, 627, 628. 
 
 Saltonstall, 13 Pet. 181, 191. t Citing Stokes v. Saltonstall, 13 Pet. 181,^ 
 
 * Citing Aston v. Heaven, 2 Esp. 533; 191-193. 
 
 Christie v. Griggs, 2 Cani,>. 79; White v. ^ Citing Crofts ?;. Watcrhouse, 3 Bing. 319, 
 
 Boulton, Peake, 113; 1 Bell's Comm. (5th ed.) 321; Christie v. Griggs, 2 Camp. 79; Aston v. 
 
 562; Stokes v. Saltonstall, 13 Pet. 181, 191- Heaven, 2 Esp. 533. 
 
 193. This whole subject was thoroughly « Maury r. Talmadge, 2 McLean, 157; Peck 
 
 examined by the Supreme Court of the v. Neil, 3 McLean, 22. 
 
 United States, in the case of Stokes u. Sal- ' Farish v. Reigle, 11 Gratt. 697, 707; Fair- 
 
 tonstall; and the opinion of the court, de- child v. California Stage Co., 13 Cal. 599.
 
 STAGE rROPKIETORS. 23i> 
 
 Duty to furnish Competent Driver. 
 
 foresee and provide for. He is bound to liave another competent driver ready 
 to take the place of the one who is sick; and if the stage is intrusted to an 
 incompetent person, either by himself, his local agent, or by the driver who has 
 been taken sick, and in consequence of th§ incompetency of this person the 
 stage is overturned and a passenger injured, he will be liable in damages. It 
 was so held in a case in Illinois,^ the facts of which, and the law arising upon 
 them, are well blended together in the following paragraph in the opinion of the 
 court, delivered by Walker, J. : " It is likewise insisted that as Ward, who 
 was also • a passenger, was at the time the accident occurred acting as the 
 driver, the proprietors are therefore not responsible for the injury sustained by 
 defendant in error. It was the duty of the proprietors of the stage line to 
 furnish competent and careful drivers, and any neglect of that duty must render 
 them liable for injuries sustained by passengers by reason of its omission. 
 When Ward was permitted to drive the coach, to relieve the regularly employed 
 driver that hacl been put in charge of the coach, he for the time being became 
 their driver ; and whether he undertook to drive at the request of the proprietors, 
 their agents, or of the regular driver on the line, can make no difference. The 
 driver was unwell when he left his station, and should have been relieved by the 
 substitution of another competent driver able to perform the duty. The pro- 
 prietors, by themselves or their agents, have control of the horses and coaches, 
 and when any one else is permitted to assume their control, such person is, for 
 all purposes of a driver, their agent ; and if incompetent, unskilful, or careless, 
 and injury results, the proprietors are liable for the damages to the same extent 
 as if he were their regularly employed driver. They must also furnish drivers 
 who are familiar with the road over which they have to pass, so that they may 
 avoid the changes incident to its travel. In this case it is apparent that if Ward 
 had known the road, the accident would not have occurred. The evidence shows 
 that instead of passing upon the centre of the road at the place where the acci- 
 tlent occurred, that the drivers on this line had been in the habit of travelling 
 along and in the ditch at the side of the road. The horses being accustomed to 
 that side of the road, were constantly making effc^rts to get into it, while Ward 
 was endeavoring to keep them in the centre of the road. It was this effort of 
 the horses to get into the side track which cari-ied the wheels of the coach 
 over the bank of the ditch and overturned it, which occasioned the injury of 
 defendant in error. Had Ward been even as well acquainted with the road as 
 were the horses, the accident would not have happened. This was one of the 
 perils of the road that could not have occurred with a driver familiar to it, 
 exercising ordinary prudence and care. And the plaintiffs in error having failed 
 to furnish such a driver, must be held lial)le to make compensation for damages 
 resulting from that neglect of duty." '^ 
 
 If a stage proprietor furnishes a known drunkard for a driver, through whose 
 negligence, while intoxicated, a passenger receives an injury, it is a proper case 
 for exemplary damages.* 
 
 § 23. Care and Vigilance exacted of the Driver. — Where it is open to the 
 driver to adopt one of two courses, one of which is safe and the other is hazard- 
 ous^ and he adopts the latter, and an accident ensues and a passenger is injured^ 
 
 » Duller V. Talbot, 23 111. 357. « Id. 362. « Sawyer v. Sauer, 10 Kan. 406.
 
 240 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 the proprietor must pay damages.^ In another case, where the driver of a stage- 
 coach ascending a hill saw coming towards him a tilted wagon and another 
 stage-coach, and turning to avoid them his coach came upon a bank of earth, 
 by which it was overturned, the question was put by Lord Ellenborough to 
 the jury whether he might have exercised a better discretion in stopping. "In 
 order to subject the master to damages," said he, " it must appear that there has 
 been something to blame on the part of his servant, and he is blamable if he has 
 not exercised the best and soundest judgment on the subject; if he could have 
 exercised a better judgment than he did, the owner is liable." ^ 
 
 This seems a severe rule, but it is in accordance with the general current of 
 authority in this country," and closely resembles what was said to the jury by 
 Judge Leavitt in a case tried in the United States Circuit Court for Ohio in 
 1840: "The jury will observe that the law holds a driver to the observance of 
 the strictest care and the most unremitting vigilance. And, hoover unexcep- 
 tionable may be his general character as a driver, if in a particular instance he 
 is guilty of carelessness or negligence, whereby an injury occurs to a passen- 
 ger, his employer, whose agent he is, is accountable. If, therefore, the jury 
 should come to the conclusion, after a deliberate examination of the testimony, 
 that the coach, owing to the excessive weight put upon it, was unmanageable, 
 iu the circumstances in which it was placed, by any power or skill which could 
 be applied or used by the driver, and was therefore upset; or if they should 
 believe that the driver, even from a temporary inattention or neglect, permitted 
 the coach to get into a predicament from which an upset was the inevitable 
 result; or if they believe that the disaster in the present case is referable to 
 these two causes combined, they will find for the plaintiff. If, on the other 
 hand, from an attentive consideration of the facts of the case as exhibited by 
 the evidence, the jury should be of opinion that the accident in question is not 
 imputable to any impropriety of conduct on the part of the defendant's agent in 
 loading the stage, or to any negligence or carelessness on the part of the driver, 
 but was, as contended for by the defendant's counsel, the result of mere acci- 
 dent or misfortune which no human forr-^ight, care, or attention could have 
 prevented, the defendant cannot be held legally answerable." * 
 
 MoreoA'cr, where the driver of a coach approaches a place of peculiar danger 
 to passengers, he is bound to warn them of the nature of the danger, to the end 
 that they may choose whether they will run the risk of it or not. Thus, where 
 the stage reached the gateway of the inn where it was to stop, and the driver 
 requested the plaintiff, a woman, who was riding on the outside, to alight there, 
 and she replied that as the road was dirty she would rather be driven into the 
 yard, and he told her that the passage into the yard was very awkward, advised 
 her to stoop, and then drove on, and it appeared that the passage led under an 
 archway which was but a foot higher than the top of the stage, by which she wa-- 
 struck and greatly injured, it was held a case for damages against the stage- 
 owner. If the driver had said to her, " 'The others will be safe in proceeding, 
 but you must go down here, as you cannot remain upon the coach without dan- 
 ger to your life,' she could only have blamed her own imprudence for what 
 
 1 Mayhew v. Boyce, 1 Stark. 423. » Supra, § 4, subsect. 3. 
 
 2 Jackson v. Tollett, 2 Stark. 37. See also ♦ Maury v. Talmadge, 2 McLean, 157, 166. 
 Curtis V. Driukwater, 2 Barn. &. Adol. 169.
 
 STAGE PROPRIETORS. 241 
 
 Care and Visfilance of the Driver. 
 
 followed ; but he should have given her the means to judge, if he was to leave 
 her to make her election." ^ 
 
 Further, the proprietor of a stage-coach is answerable for the negligence of 
 the driver from the usual place of taking up the passengers, not only till the 
 coach arrives at its place of destination, but until the passengers are there 
 safely set down. This doctrine is stated and enforced by Lord Ellenborough 
 in the case last cited.^ 
 
 Although the agent of a stage-owner requests a passenger to take an inside 
 seat, and tells him that he will ride on the outside at his peril, and the passenger 
 disobeys the injunction, this will not excuse the negligence of the driver in 
 injuring him. The passenger, in such a case, assumes the peculiar risks of his 
 exposed situation, but not the risks resulting from the negligence of the driver; 
 and whether his disobeying the injunction contributed to the injurj', is a question 
 for the jury.* Whether the vehicle was overturned by the negligence of the 
 driver, will be a question of fact for the jury, under all the circumstances of the 
 case.* "It is impossible to lay down any' general rule by which the inquiry 
 whether a coach is excessively laden can be satisfactorily tested. The character 
 and condition of the road over which a vehicle is to pass will be the main con- 
 sideration in such an inquiry. It will be obvious to the jury that upon a 
 properly graded and well finished turnpike there will be no great danger of the 
 upsetting of a carriage from any weight that may be put on it, while upon one 
 of the common roads of the country, especially over a hilly region, there might 
 be very great danger in conveying a weight which, under other circumstances, 
 could not be regarded as excessive. It will therefore be the duty of the jury, 
 in coming to a conclusion on this point, to take into consideration the number 
 of passengers, the weight of baggage, the general character of the road along 
 which the defendant's stages run, and especially the portion of it over which the 
 coach was passing when this accident occurred; and if the jury believe it can 
 be fairly referred to the improper loading of the coach, there can be no question 
 but what the defendant is legally answerable for the consequences. It is cleai'Iy 
 the duty of a stage-proprietor to see that the safety of his passengers is not 
 put at hazard by an excessive load ; and if he disregards or violates his duty 
 in this respect, he is liable for any injury that may follow." * In an action 
 for an injury to the passenger, alleged to have been occasioned by overturning 
 the stage, it has been held incompetent to prove that it was the custom on that 
 route to carry as great a number of passengers as were in and on the stage at 
 that time. The defendant cannot thus give in evidence, either in his own justifi- 
 cation or in extenuation of damages, a custom or practice established by himself. 
 But a general custom ag to the number of passengers which can be carried with 
 safety must in all cases vary with the character and condition of the road. It 
 has been held competent to ask of drivers acquainted with the particular route 
 
 1 Duflleyv. Smith, 1 Camp. 167. Houston etc. R. Co. v. Gorbett, 49 Texas, 
 
 2 Dudley r. Smith, swpra. Accordingly, in 573. See /)os<. Chap. X. 
 
 case of railway carriers, if the passenger is " Keith v. Pinkham, 43 Me. 501. 
 
 assaulted and injured by the company's ser- < Leavitt, J., to the jury iu Maury v. Tal- 
 
 vant while crning off the car at the i)lace of madge, 2 McLean, 157, 165. 
 
 his destination, the company must pay dam- ^ Per Leavitt, J., in Maury v. Talmadge,2 
 
 ages, unlpi^a the act of the servant was wil- McLean, 157, 105. 
 ful or outside the scope of his employment. 
 
 in
 
 242 LIABILITY OF THE CARRIER FOR NEGLIGENCE. 
 
 Notes. 
 
 what number of passengers could be safely carried by a coach such as that in 
 which the plaintiff was, in the state in which the road was at the time of the 
 injury.i 
 
 §24. Overloading the Vehicle. — If the carrier loads his vehicle with more 
 passengers than its strength will reasonably warrant, although he has no more 
 persons upon it than the statute allows, and it breaks down, he must pay dam- 
 ages to a passenger injured.- The case is still worse where he overloads the 
 coach with passengers, and in addition to this, places a mass of heav^y freight on 
 top. "It is no apology," said the Supreme Court of Connecticut in a case of 
 this kind, "that freight is put upon these stages, as in this case, under public or 
 any other notice. The liability continues the same. Nor is it any apology that 
 the stage proprietors and their drivers are accustomed to load do^vn their stages 
 with passengers and freight, notwithstanding the state of the roads, untU 
 nothing more can be crowded within or accumulated on top. It is high time 
 that the law on this subject should be better understood and regarded, and that 
 such unbearable liberties should cease to be taken by persons who stipulate to 
 carry passengers safely and without exposure. Converting stage-coaches into 
 wagons to transport iron, and wellnigh every thing else, is the last innovation 
 upon the rights of the travelling community, and it is one which we do not 
 intend to sanction or countenance." In the case in which this lecture was 
 delivered from the bench, it appeared that a stage-sleigh had been loaded with 
 tiiirteen passengers, with their baggage, and also with four hundred and eighteen 
 pounds of iron, placed on top of the cover. On turning a slippery and danger- 
 ous place, the sleigh was upset and the plaintiff injured. The jury having 
 returned a verdict for the defendant, the Supreme Court set it aside as against 
 the weight of evidence, and gi'anted a new trial.* 
 
 1 Maury v. Talmadge, 2 McLean, 157, 168. * Derwort v. Loomer, 21 Conn. 245. 
 
 - Israel v. Clark, i Esp. 259.
 
 CHAPTER VI. 
 
 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Leading Cases: 1. Morrissey v. Wiggins Ferry Company. — The general doc- 
 trine of contributory negligence applied to injuries to 
 passengers. 
 
 2. Jones v. Boyce. — Passenger acting erroneously under 
 
 impulse of fear. 
 
 3. Bailroad Company v. Jones. — Passenger riding in an un- 
 
 authorized place. 
 
 4. Bailroad Company v. Aspell. — Passenger leaping from 
 
 train while in motion. 
 
 Notes: § 1. General doctrines. 
 
 2. Riding in an unauthorized manner. 
 
 (1.) Arm out of window. 
 (2.) Upon the car platform. 
 (3.) In the baggage-car. 
 (4.) In various positions. 
 
 3. Leaping on or off cars in motion. 
 
 4. Getting on and off train at a dangerous place. 
 
 5. Passenger laboring under a disability. 
 
 1. THE GENERAL DOCTRINES OF CONTRIBUTORY NEGLIGENCE 
 APPLIED TO INJURIES TO PASSENGERS. 
 
 Morrissey v. Wic4gins Ferry Company.* 
 
 Supreme Court of Missouri, 1869. 
 
 Hon. David Wagxer, 1 
 " Philemon Bliss, 1- Judges. 
 " Warren Currier, I 
 
 1. Contributory Negligence — Recovery where Passenger is in Fault. — The doc- 
 
 trine of some of the courts, that there can be no recovery lor negligence where the 
 person injured is in the least fault, denied. 
 
 2. On the contrary, the correct rule is held to be, that although the passenger's miscon- 
 
 duct may have contributed remotely to the injury, yet if the carrier's misconduct was 
 the immediate cause of it, and if by the exercise of prudence he could have prevented 
 it, he is not excused; and it ought to be left to the jury to say whether (notwithstand- 
 ing the imprudence of the passenger) the carrier could not, by the exercise of reason- 
 able diligence, have prevented the catastro)jhe. 
 
 3. The decree of responsibility to which carriers of passengers are subjected is not 
 
 ordinary care merely, whioh will make them liable only for ordinary neglect, but 
 extraordinary care, which renders them liable for slight neglect. 
 
 Reported, 43 Mo. 380. 
 
 (243)
 
 244 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Morrissey v. Wiggins Ferry Company. 
 
 Appeal from the St. Louis Circuit Court. 
 The facts are stated in the opinion of the court. 
 On the trial, the following, among other instructions, were given to the 
 jury for the defendant: — 
 
 1. The jury are instructed that they are to consider whether or not 
 there was any negligence on the part of the deceased, or a want of care 
 and common prudence ordinarily exercised on such occasions and in 
 like circumstances. And if they believe from the evidence that there 
 was such negligence or want of care and prudence on her part, which 
 produced, or contributed to produce, the accident and death of said 
 deceased (if they believe she was drowned), then they will find for the 
 defendant. 
 
 2. Unless the jury believe from the evidence that said Annie Mor- 
 rissey went overboard and was drowned, and that she was then a minor 
 under the age of eighteen years, and the daughter of plaintiff, and that 
 such accident and death were occasioned by the neghgence, unskilful- 
 ness, or criminal intent of the engineer, agents, or emplo3-ees of the 
 defendant, while running, conducting, or managing the feny-boat, as 
 respects the keeping of the entrance to said boat, where passengers 
 go on and off, properly guarded and protected, and as respects keeping 
 lights on said boat and wharf-boat, and unless they further believe that 
 such accident and death resulted without any negligence or want of 
 care on her part which produced, or contributed to produce, such acci- 
 dent and death, the}- will find for defendant. 
 
 Morris & Peabody^ for appellant ; Ewing & Holliday, for respondent. 
 
 "Wagner, J., delivered the opinion of the court. — This action was 
 brought under the second section of chap. 147 of the General Stat- 
 utes, and damages claimed to the amount of S5,000, by the plaintiff, 
 as the only surviving parent of Annie Morrissey, who, it is alleged, was 
 a minor and unmarried, and was drowned while crossing the Mississippi 
 River on one of the defendant's ferry-boats, in consequence of the 
 negligence, unskilfulness, or criminal intent of defendant's agents and 
 employees in managing said boat. 
 
 On the trial in the court below, under certain instructions, the jury 
 found a verdict for the defendant. There was much evidence given, 
 and it was conflicting in its character ; but I shall neither detail nor 
 comment on it, as it belongs exclusively to the jury to attach to it 
 whatever weight and consideration they may deem it deserves. 
 
 The whole defence was based upon the ground of contributory negli- 
 gence ; that the deceased, through her imprudence and want of care, 
 produced or contributed to the accident in such a manner as ought to 
 preclude a recoverv. * That there is a difference in the adjudications 
 
 i
 
 GENERAL PRINCIPLES. 245 
 
 Supreme Court of Missouri. 
 
 upon this subject, and that some courts have held that no recovery 
 can be had where the injured party is in the least in fault, cannot be 
 disputed. But such is not the ruling of this court; and it is to be 
 observed that the courts which have heretofore laid down the above 
 doctrine are rapidly retracing their steps, and declaring a rule more 
 reasonable and in consonance with justice. 
 
 The question has been discussed in several recent cases in this court, 
 and the law must be considered as established, — no longer in doubt or 
 open to question. The settled principle now is that it ought to be left 
 to the jury to say whether, notwithstanding the imprudence of the 
 injured person, the defendant could not, in the exercise of reasonable 
 diligence, have prevented the catastrophe. 
 
 The degree of responsibility to which carriers of passengers are sub- 
 jected is not ordinary care merely, whicb will make them liable only for 
 ordinary neglect, but extraordinary care, which renders them liable for 
 slight neglect. 
 
 la a recent case in this court, in discussing the liability of passenger- 
 carriers, we declared the rule to be "that the carrier shajl be guilty of 
 some negligence which mediately or immediatel}^ produced or enhanced 
 the injury, and that passengers should not have been guilty of any care- 
 lessness and imprudence which directly contributed to the injury, since 
 no one can recover for an jnjury of which his own negligence was, in 
 whole or in part, the proximate cause; and that, although the plaintiff's 
 misconduct may have contributed remotely to the injury, if the defenu- 
 ant's misconduct was the immediate cause of it, and with the exercise 
 of prudence he might have prevented it, he is not excused." ^ The 
 concluding paragraph of defendant's second instruction is objectionable. 
 It tells the jury that unless they believe that the accident and death 
 resulted without any negligence or want of care on the part of Annie, 
 which produced, or contributed to produce, such accident and death, 
 then they sliould find for the defendant. 
 
 This was in direct conflict with the law as above declared. It de- 
 stroyed the plaintiff's right of action for the least fault on the part of 
 deceased, and exonerated the defendant although the unskilfulness, neg- 
 ligence, and criminal intent of its agents and employees may have directly 
 caused the injury. Such is not the law, and we hope it never will be. 
 
 The plaintiff asked two instructions, which were refused. They are 
 as follows : — 
 
 "That if the jury find from the evidence that the employees of 
 
 1 Huelsenkamp v. Citizens' R. Co., 37 Mo. 537 ; Kennedy v. North Missouri R. Co., 36 Mo. 3.51 ; 
 Bolandr;. Missouri R. Co., 36 Mo. 481; Meyer v. Pacific R. R., 40 Mo. 153; Liddy f . St. Louis R. 
 Co., 40 Mo. 506.
 
 246 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Jones V. Boyce. 
 
 defendant, or either'of them, were guilty of negligence in not keeping 
 the entrance to defendant's boat properly guarded or protected, or in 
 not keeping suflScient lights on said boat, or on the wharf-boat, by reason 
 of which deceased came to her death, and that deceased was not guilty 
 of any want of ordinary care and prudence which directly contributed 
 to the injury, then the defendant is liable in this suit. 
 
 "That although the deceased may have been guilty of misconduct, 
 or failed to exercise ordinary care or prudence while a passenger on 
 defendant's boat, which may have contributed remotely to the death of 
 deceased, yet if the employees, or either of them, of the defendant 
 were guilty of negligence which was the immediate cause of the death, 
 and with the exercise of prudence by said employees, or either of them, 
 said injury and death might have been prevented, the defendant is 
 liable in this suit," 
 
 The instructions asserted correct propositions of law, and should have 
 been given. They tell the jury that if the deceased only remotely 
 contributed to the accident, and if the agents and employees of the 
 defendant were the direct and immediate cause, and might have pre- 
 vented it by the exercise of prudence and care, the defendant is liable. 
 Nothing can be clearer. [Unimportant point omitted.] 
 
 With the concurrence of the other judges, the judgment will be 
 reversed and the cause remanded. 
 
 Judgment reversed. 
 
 2. PASSENGER ACTING ERRONEOUSLY UNDER IMPULSE OF FEAR. 
 
 Jones v. Boyce.* 
 
 English Court of King's Bench, 1816. 
 
 Before Lord Ellexborough, Chief Justice, at Nisi Prins. 
 
 Passenerer lieaping from Stage-coach. — If, through the default of a coach proprietor 
 in neglecting to provide projier means of conveyance, a passenger be placed in so 
 perilous a situation as to render it prudent for him to leap from the coach, whereby hia 
 leg is broken, the proprietor will be responsible in damages, although the coach was 
 not actually overturned. 
 
 This was an action on the ease against the defendant, a coach pro- 
 prietor, for so negligently conducting the coach that the plaintiff, an 
 outside passenger, was obliged to jump off the coach, in consequence 
 of which his leg was broken. 
 
 It appears that soon after the coach had set off from an inn, the coup- 
 
 • Heported, 1 Stark. 493.
 
 ACTING ERRONEOUSLY THROUGH FEAR. 247 
 
 Lord Elleuborough at Nisi Prius. 
 
 ling- rein broke, and one of the leaders being ungovernable whilst the 
 coach was on a descent, the coachman drew the coach to one side of 
 the road, where it came in contact with some piles, one of which it 
 broke, and afterwards the wheel was stopped by a post. Evidence was 
 adduced to show that the coupling-rein was defective, and that the 
 breaking of the rein had rendered it necessary for the coachman to 
 drive to the side of the road in order to stop the career of the horses. 
 Some of the witnesses stated that the wheel was forced against the post 
 with great violence ; and one of the witnesses stated that at that time 
 the plaintiff, who had before been seated at the back part of the coach, 
 was jerked forward in consequence of the concussion, and that one of 
 the wheels was elevated to the height of eighteen or twenty inches ; but 
 whether the plaintiff jumped off or was jerked off he could not say. A 
 witness also said: "I should have jumped down had I been in his [the 
 plaintiff's] place, as the best means of avoiding the danger." The 
 coach was not overturned, but the plaintiff was immediately afterwards 
 seen lying on the road with his leg broken, the bone having been pro- 
 truded through the boot. 
 
 Upon this evidence, Lord Ellenborough was of opinion that there was 
 a case to go to the jury, and a considerable mass of evidence was then 
 adduced tending to show that there was no necessity for the plaintiff to 
 jump off. 
 
 Lord Ellenborough, in his address to the jury, said: This case 
 presents' two questions for your consideration : First, whether the pro- 
 prietor of the coach was guilty of any default in omitting to provide 
 the safe and proper means of conveyance ; and if you should be of that 
 opinion, the second question for your consideration w'.U be whether that 
 default was conducive to the injur\' which the plaintiff has sustained ; 
 for, if it was not so far conducive as to create such a reasonable degree 
 of alarm and apprehension in the mind of the plaintiff as rendered it 
 necessary' for him to jump down from the coach in order to avoid imme- 
 diate danger, the action is not maintainable. To enable the plaintiff to 
 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 misconduct 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 defendant, the action may be sujv 
 ported. On the other hand, if the plaintiff's act resulted from a rash 
 appreliension of danger which did not exist, and the injury which he 
 sustained is to be attributed to rashness and imprudence, he is not 
 entitled to recover. The question is whether he was placed in such a 
 situation as to render wliat he did a prudent precaution for the purpose
 
 248 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Riiilroad Company v. Jones. 
 
 of self-preservation. His lordship, after recapitulating tlie facts, and 
 commenting upon them, and particularly on the circumstance of the 
 rein being defective, added: If the defect in the rein was not the 
 constituent cause of the injury, the plaintiff will not be entitled to your 
 verdict; therefore, it is for your consideration whether the plaintiff's act 
 was the measure of an unreasonably alarmed mind, or such as a reason- 
 able and prudent mind would have adopted. If I place a man in such a 
 situation that he must adopt a perilous alternative, I am responsible for 
 the consequences. If, therefore, j'ou should be of opinion that the reins 
 were defective, did this circumstance create a necessity for what he did, 
 and did he use proper caution and prudence in extricating himself from 
 the apparently impending peril? If you are of that opinion, then, since 
 the original fault was in the proprietor, he is liable to the plaintiff for 
 the injury which his misconduct has occasioned. This is the first case 
 of the kind which I recollect to have occurred. A coach proprietor 
 certainly is not to be responsible for the rashness and imprudence of 
 a passenger; it must appear that there existed a reasonable cause for 
 alarm. 
 
 The jury found a verdict for the plaintiff. Damages, £300. 
 
 Garrow, A. G., and V. Lawes, for the plaintiff; Topping, Scarlett, 
 and Espinasse, for the defendant. 
 
 3. PASSENGER RmiNG IN AN UNAUTHORIZED POSITION. 
 
 Kailroad CoaiPANY V. Jones.* 
 Supreme Court of the United States, 1877, 
 
 Hon. Morrison R. Waite, Chief Justice, 
 
 " Nathan Clifford, 
 
 " Samuel F. Miller, 
 
 " William Strong, 
 
 " Ward Hunt, 
 
 « XT TT o i- Justices, 
 
 " Noah H. Swayne, ' 
 
 " Stephen J. Field, 
 
 " Joseph P. Bradley, 
 
 " John M. Harlan, 
 
 Case in Judgrment- — The plaintiff, a laborer in the employ of a railway company, when 
 about to leave the place where he was working, on one of the defendant's trains, was 
 told by the person superintending him, who was also conductor of the train, to get on 
 anywhere, as the train was in a hurry to leave. The plaintiff got on the pilot of the 
 
 * Reported, 95 T^. S. 439.
 
 RIDING IN UNAUTHORIZED POSITION. 249 
 
 Supreme Court of the United States. 
 
 locomotive, which was a dangerous place to lide. While on the trip, he was injured by 
 a collision between the locomotive and some other cars of the company, caused by the 
 negligence of the company. The proper place for him to ride was in a box- car on the 
 train, provided for the employees ; and he had been told previously always to ride there, 
 and had been forbidden riding on the pilot of the locomotive. No one of those in the 
 box-car was injured, and he would not have been if he had ridden there. Held, that 
 the plaintiflf was guilty of contributory negligence, and could not recover of the defend- 
 ant for the injury. 
 
 In error to the Supreme Court of the District of Columbia. 
 
 Enoch Trotter, for plaintiff in error; Edward G. Carrington and 
 Campbell Carrington, contra. 
 
 Mr. Justice Swatne delivered the opinion of the court. — The defend- 
 ant in error was the plaintiff in the court below. Upon the trial there 
 he gave evidence to the following effect: For several months prior to 
 the 12th of November, 1872, he was in the service of the company as a 
 day-laborer. He was one of the party of men employed in constructing 
 and keeping in repair the roadway of the defendant. It was usual for 
 the defendant to convey them to and from their place of work. Some- 
 times a car was used for this purpose ; at others, only a locomotive 
 and tender were provided. It was common, whether a car was provided 
 or not, for some of the men to ride on the pilot or bumper in front of 
 the locomotive. This was done with the approval of Van Ness, who 
 was in charge of the laborers when at work, and the conductor of the 
 train which carried them both ways. The plaintiff had no connection 
 with the train. On the 12Lh of November before mentioned, the party 
 of laborers, including the plaintiff, under the direction of Van Ness, 
 were employed on the west side of the eastern branch of the Potomac, 
 near where the defendant's road crosses that stream, in filling flat-cars 
 with dirt and unloading them at an adjacent point. The train that even- 
 ing consisted of a locomotive, tender, and box-car. When the party 
 was about to leave on their return that evening, the plaintiff was told 
 by Van Ness to jump on anywhere — that they were behind time and 
 must hurry. The plaintiff was riding on the pilot of the locomotive, 
 and while there the train ran into certain cars belonging to the defendant 
 and loaded with ties. These cars had become detached from another 
 train of cars, and were standing on the track in the Virginia Avenue 
 tunnel. The accident was the result of negligence on the part of the 
 defendant. Thereby one of the plaintiff's legs was severed from his 
 liody, and the other one severely injured. Nobody else was hurt, except 
 two other persons, — one riding on the pilot with the plaintiff, and the 
 other one on the cars standing in the tunnel. 
 
 The defendant then gave evidence tending to prove as follows: About 
 six weeks or two months before the accident, a box-car had been assigned
 
 250 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Eailroad Company v. Jones. 
 
 to the construction-train with which the plaintiff was employed. The 
 car was used thereafter every day. About the time it was first used, 
 and on several occasions before the accident, Van Ness notified the 
 laborers that they must ride in the car, and not on the engine ; and the 
 plaintiff in particular, on several occasions not long before the disaster, 
 was forbidden to ride on the pilot both by Van Ness and the engineer 
 in charge of the locomotive. The plaintiff was on the pilot at the time 
 of the accident without the knowledge of any agent of the defendant. 
 There was plenty of room for the plaintiff in the box-car, which was 
 open. If he had been anywhere but on the pilot, he would not have been 
 injured. The collision was not brought about by any negligence of the 
 <lefendant's agents, but was unavoidable. The defendant's agents in 
 •charge of the two trains, and the watchman in the tunnel, were compe- 
 tent men. 
 
 The plaintiff, in rebuttal, gave evidence tending to show that some- 
 times the box-car was locked when there was no other car attached to 
 the train, and that the men were allowed by the conductor and engineer 
 to ride on the engine, and that on the evening of the accident the 
 €ngineer in charge of the locomotive knew that the plaintiff was on the 
 pilot. 
 
 The evidence being closed, the defendant's counsel asked the court 
 to instruct the jury as follows: "If the jur}' find from the evidence 
 that the plaintiff knew the box-car was the proper place for him, and if 
 he knew his position on the pilot of the engine was a dangerous one, 
 then they will render a verdict for the defendant, whether they find that 
 its agents allowed the plaintiff to ride on the pilot or not." This 
 instruction was refused, and the defendant's counsel excepted. 
 
 Three questions arise upon the record: 1. The exception touching 
 the admission of evidence. 2. As to the application of the rule rela- 
 tive to injuries received by one servant by reason of the negligence of 
 another servant, both being at the time engaged in the same service 
 of a common superior. 3. As to the contributory negligence on the 
 part of the plaintiff. 
 
 "We pass b^^ the first two without remark. "We have not found it 
 necessary to consider them. In our view, the point presented by the 
 third is sufBcient to dispose of the case. 
 
 Negligence is failure to do what a reasonable and prudent person 
 would ordinarily have done under the circumstances of the situation, or 
 <loing what such a person under the existing circumstances would not 
 have done. The essence of the fault may lie in omission or commis- 
 sion. The duty is dictated and measured by the exigencies of the
 
 RIDING IN UNAUTHORIZED POSITION. 251 
 
 Supreme Court of the United States. 
 
 occasion.! One who by negligence has brought an injury upon himself 
 cannot recover damages for it. Such is the rule of the civil and of the 
 common law. A plaintiff in such cases is entitled to no relief. But 
 where the defendant has been guilty of negligence also, in the same 
 -connection, the result depends upon the facts. The question in such 
 cases is, (1) whether the damage was occasioned entirely by the neg- 
 ligence or improper conduct of the defendant; or (2) whether the 
 plaintiff himself so far contributed to the misfortune by his own negli- 
 gence or want of ordinary care and caution, that but for such neg- 
 ligence or want of care and caution on his part, the misfortune would 
 not have happened. In the former case, the plaintiff is entitled to 
 recover; in the latter, he is not.^ 
 
 It remains to apply these tests to the case before us. The facts with 
 respect to the cars left in the tunnel are not fully disclosed in the record. 
 It is not shown when they were left there, how long they had been 
 there, when it was intended to remove them, nor why they had not been 
 removed before. It does appear that there was a watchman at the 
 tunnel, and that he and the conductor of the train from which they 
 were left, and the conductor of the train which carried the plaintiff, 
 were all well selected and competent for their places. For the purposes 
 of this case, we assume that the defendant was guilty of negligence. 
 
 The plaintiff had been warned against riding on the pilot, and forbid- 
 den to do so. It was next to the cow-catcher, and obviously a place of 
 peril, especiall}' in case of collision. There was room for him in the 
 box-car. He should have taken his place there. He could have gone 
 into the box-car in as little, if not less time than it took to climb to the 
 [)ilot. The knowledge, assent, or direction of the company's agents as 
 to what he did is immaterial. If told to get on anywhere, that the train 
 was late, and that he must hurry, this was no justification for taking 
 such a risk. As well might he have obeyed a suggestion to ride on the 
 cow-catcher, or put himself on the track before the advancing wheels of 
 the locomotive. The company, although bound to a liigh degree of 
 care, did not insure his safety. He was not an infant, uor non compos. 
 The liability of the company was conditioned upon the exercise of 
 reasonable and proper care and caution on his part. Without the latter, 
 the former could not arise. He and another who rode beside him were 
 the only persons hurt upon the train. All those in the box-car, where 
 
 1 See Whart. on Neg., § 1, and notes. Davies v. Mann, 10 Mee. & W. 546; Clayarda 
 
 « Tuff V. Warman, 5 C. B. (N. 8.) 573; But- v. Detliick, 12 Q. B. 4;«; Van Lien v. Scoville 
 
 terfleld v. Forrester, 11 East, GO; Briilge v. Co., 14 Abb. Pr. (N. 8.) 74; Ince v. East Boa- 
 
 (irand Junction R. Co., 3 Mee. & VV. 244; ton Co., 106 Mass. 149.
 
 252 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Railroad Company v. Aspell. 
 
 he should have been, were uninjured. He would have escaped also if 
 he had been there. His injury was due to his own recklessness and 
 folly. He was himself the author of his misfortune. This is shown 
 with as near an approach to a demonstration as any thing short of mathe- 
 matics will permit. The case is thus clearly brought within the second 
 of the predicates of mutual negligence we have laid down.^ 
 
 The plaintiff was not entitled to recover. It follows that the court 
 erred in refusing the instructions asked upon this subject. If the com- 
 pany had prayed the court to direct the jury to return a verdict for the 
 defendant, it would have been the duty of the court to give such direc- 
 tions, and error to refuse. ^ 
 
 Judgment reversed, and the cause remanded with directions to issue a 
 venire ne novo, and to proceed in conformity with this opinion. 
 
 4. PASSENGER LEAPING FROM TRAIN WHILE IN MOTION. 
 
 Railroad Company v. Aspell.* 
 Supreme Court of Pennsylvania, 1854, 
 
 Hon. Jeremiah S. Black, Chief Justice, 
 " Ellis Lew^is, 
 " Walter H. Lowrie, 
 " George W. Woodward, 
 " John C. Knox, 
 
 Justices, 
 
 If a passeng'er-train, instead of stopping at the station where a passenger is to get off, 
 passes by it, though at a diminished rate of speed, and the passenger, against the 
 warning of the conductor, leaps from the train while in motion, and is injured, he 
 cannot recover damages of the company; and this is so, although the conductor calls 
 out the name of the station before it is reached. 
 
 Error to the Common Pleas of Delaware County. 
 This was an action on the case by Richard Aspell against the Penn- 
 sylvania Railroad Company. 
 
 It was alleged in the declaration that the plaintiff became a passenger 
 
 * Reported, 23 Pa. St. 147. 
 
 » Hickey v. Railroad Co., 14 Allen, 429; etc. R. Co. v. Yarwood, 15 111. 468; Doggettr. 
 
 Todd V. Railroad Co., 3 Allen, 18; s. c. 7 Railroad Co., 34 Iowa, 285. 
 
 Allen, 207; Gavett r. Railroad Co., 16 Gray, « Gavett v. Railroad Co., supra; Mer- 
 
 501;Lucasv. Railroad Co., 6 Gray, 64; Ward chants' Rank v. State Bank, 10 WaU. 605; 
 
 v.RailroadCo.,2 Abb. Pr. (N. S.) 411; Galena Pleasants «. Fant, 22 WaU. 121.
 
 LEAFING FROM TRAIN WHILE IN MOTION. 253 
 
 Supreme Court of Pennsylvania. 
 
 in the cars of the Pennsylvania Railroad Company from Philadelphia to 
 Morgan's Corner ; that the car was not stopped at the latter place, so as 
 to allow him to alight safely ; that in attempting to alight, he was, by 
 reason of the rapid motion of the cars, thrown upon the ground and 
 one of his feet injured. 
 
 The plea was, not guilty. Verdict for the plaintiff for Si, 500. 
 
 The plaintiff took passage from Philadelphia for Morgan's Corner in 
 March, 1851, in the night line. Just before reaching the latter place. 
 the State agent endeavored to give the usual signal to the engineer to 
 stop, by pulling the bell-rope. The rope did not operate, though the 
 speed of the train was checked by the engineer in oi'der more safely to 
 pass certain switches. The speed of the train increasing, other signals 
 were made to the engineer to stop ; but whilst the train was in motion 
 ihe plaintiff leaped from the car, though warned by the conductor and 
 brakeman not to do so, and informed that the train would be stopped 
 and backed to the station. The plaintiff's foot was injured. 
 
 The court below charged that the pulling the bell-rope, and the 
 :innounceraent of Morgan's Corner, warned the plaintiff that he had 
 arrived there, and was expected to prepare for leaving ; that though 
 he was warned not to jump, he could nevertheless recover for the injury 
 received ; that the agents of the company, in announcing to the pas- 
 sengers the place of arrival while the cars were in motion at the rate 
 of from seven to ten miles an hour, did not exercise the degree of 
 diligence and care which the law required ; that the train should have 
 been stopped before such announcement as to the place was made. 
 
 It was further charged that in this case a contract existed, and the 
 train should have been stopped; that the announcement of Morgan's 
 Corner caused the plaintiff, in going to the platform, to be in a position 
 of danger, and although it was imprudent in the plaintiff to jump from 
 the car, though warned of the danger, yet the agents of the companj- 
 being in fault, the plaintiff could recover. 
 
 It was further charged that the imprudence of the plaintiff might 
 be considered by the jury in fixing the damages. 
 
 The portions of the charge referred to were assigned for error. 
 
 W. DarUng'oii, for plaintiff in error; Lewis, for defendant in error. 
 
 The opinion of the court was delivered by — 
 
 Black, C. J. — The plaintiff below was a passenger in the defendants' 
 cars from Philadelpliia to Morgan's Corner. The train should have 
 stopped at the latter place ; but some defect in the bell-rope i)revented 
 the conductor from making the pi-oper signal to tiie engineer, who there- 
 fore went past, though at a speed somewhat slackened on account of
 
 254 CONTRIBUTOKY NEGLIGENCE OF THE PASSENGER. 
 
 Railroad Company v. Aspell. 
 
 the switches which were there to be crossed. The plaintiff, seeing 
 himself about to be carried on, jumped from the platform of the car, 
 and was seriously hurt in the foot. He brought this action ; and the 
 jury, with the approbation of the court, gave him $1,500 in damages. 
 
 Persons to whom the management of a railroad is intrusted are bound 
 to exercise the strictest vigilance. They must carry the passengers to 
 their respective places of destination, and set them down safely if 
 human care and foresight can do it. They are responsible for every 
 injui'y caused by defects in the road, the cars, or the engines, or bj'^ any 
 species of negligence, however slight, which they or their agents may be 
 guilty of. But they are answerable only for the direct and immediate 
 consequences of errors committed by themselves. They are not insur- 
 ers against the perils to which a passenger may expose himself by his- 
 own rashness or folly. One who inflicts a wound upon his own body 
 must abide the suffering and the loss, whether he does it in or out of a 
 railroad car. It has been a rule of law from time immemorial, and is 
 not likely to be changed in all time to come, that there can be no recov- 
 ery for an injury caused by the mutual default of both parties. When 
 it can be shown that it would not have happened except for the culpable 
 negligence of the party injured concurring with that of the other party, 
 no action can be maintained. A railroad company is not liable to a pas- 
 senger for an accident which the passenger might have prevented by 
 ordinary attention to his own safety, even though the agents in charge 
 of the train are also remiss in their duty. 
 
 From these principles it follows very clearly that if a passenger is 
 negligently carried beyond the station where he intended to stop, and 
 where he had a right to be let off, he can recover compensation for the 
 inconvenience, the loss of time, and the labor of travelling back,, 
 because these are the direct consequences of the wrong done to him. 
 But if he is foolhardy enough to jump off without waiting for the train 
 to stop, he does it at his own risk, because this is gross imprudence, for 
 which he can blame nobody but himself. If there be any man who does 
 not know that such leaps are extremely dangerous, especially when 
 taken in the dark, his friends should see that he does not travel by rail- 
 road. 
 
 It is true that a person is not chargeable with neglect of his own safety 
 when he exposes himself to one danger by trying to avoid another. In 
 such a case, the author of the original peril is answerable for all that 
 follows. On this principle we decided last year at Pittsluu-gh, that the 
 owners of a steamboat which was endangered by a pile of iron wrong- 
 fully left on the wharf, and to get clear of it was backed out into the
 
 LEAPING FROM TRAIN WHILE IN MOTION. 255 
 
 Supreme Court of Pennsylvania. 
 
 stream, where she was struck by a coal-boat and sunk, had a good 
 cause of action against the city corporation, whose duty it was to have 
 removed the iron. If, therefore, a pei'son should leap from the car 
 under the influence of a well-grounded fear that a fatal collision is 
 about to take place, his claim against the company for the injury he 
 may suffer will be as good as if the same mischief had been done by the 
 apprehended collision itself. When the negligence of the agents puts a 
 passenger in such a situation that the danger of remaining on the car is 
 apparently as great as would be encountered in jumping off, the right to 
 compensation is not lost by doing the latter ; and this rule holds good 
 even where the event has shown that he might have remained inside 
 with more safety. Such was the decision in Stokes v. Saltonstall,^ so 
 much relied on by the defendant in error. A passenger in a stage-coach, 
 seeing the driver drunk, the horses mismanaged, and the coach about to 
 upset, jumped out and was thereby much hurt. The court held the 
 proprietors of the line responsible, because the misconduct of their ser- 
 vant had reduced the passenger to the alternative of a dangerous leap 
 or remaining at great peril. But did the plaintiff in the present case 
 suffer the injury he complains of by attempting to avoid another with 
 which he was threatened ? Certainly not ; he was in no possible danger 
 of any thing worse than being carried on to a place where he did not 
 choose to go. That might have been inconvenient ; but to save himself 
 from a mere inconvenience by an act which put his life in jeopardy, was 
 inexcusable rashness. 
 
 Thus far I have considered the case without reference to certain facts 
 disclosed in the evidence which tend to diminish the culpability of the 
 defendants' agents, while they aggravate (if any thing can aggravate) 
 the folly of the plaintiff. "When he was about to jump, the conduc- 
 tor and the brakeman entreated him not to do it, warned him of the 
 danger, and assured him that the train should be stopped and backed to 
 the station. If he had heeded them, he would have been safely let 
 down at the place he desired to stop at, in less than a minute and a half. 
 Instead of this, he took a leap which promised him nothing but death ; 
 for it was made in the darkness of midnight, against a wood-pile close to 
 tlie track, and from a car going probably at the full rate of ten miles an 
 hour. 
 
 Though these facts were uncontradicted, and though the court ex- 
 pressed the opinion that no injury would have happened to the plaintiff 
 but for his own imprudence, the jury were nevertheless instructed that 
 
 1 13 Pet. 181, ante, p. 183.
 
 25(5 CONTKIBLTOUY NEGLIGKNCE OF THE PASSENGER. 
 
 Railroad Company v. Aspell. 
 
 the defendants were bound to compensate him in damages. The learned 
 judge held that the cases of mutual neglect did not apply, because this 
 action was on a contract. Now, a party who violates a contract is not 
 liable, any more than one who commits a tort, for damages which do not 
 necessarily or immediately result from his own act or omission. In 
 neither case is he answerable for the evil consequences which may be 
 superadded by the default, negligence, or indiscretion of the injured 
 party. There is no form of action known to the law (and the wit of 
 man cannot invent one) in which the plaintiff will be allowed to recover 
 for an act not done or caused by the defendant, but by himself. 
 
 When the train approached Morgan's Corner, some one (probably 
 the conductor) announced it. Much stress was laid on this fact. The 
 court said, in substance, that to make such an announcement before the 
 train actually stopped was a want of diligence, whereby the plaintiff was 
 thrown into a position of danger; and though he was warned not to 
 jump, j'et, having done so, he could make the company pay him for the 
 hurt he received. We think this totally wrong. It is not carelessness 
 in a conductor to notify passengers of their approach to the station at 
 which they mean to get off, so that they may prepare to leave with as 
 little delay as possible when the train stops. And we cannot see why 
 such a notice should put any man of common discretion in peril. It is 
 scarcely possible that the plaintiff could have understood the mere 
 announcement of Morgan's Corner as an order that he should leap, 
 without waiting for a halt. If he did make that absurd mistake, 
 it was amply corrected by the earnest warnings wliieh he afterwards 
 received. 
 
 The remark of the court that life and limb should not be weighed 
 against time, is most true ; and the plaintiff should have thought of it 
 when he set his own life on the hazard of such a leap, for the sake of 
 getting to the ground a few seconds earlier. Locomotives are not the 
 only things that may go off too fast ; and railroad accidents are not 
 alwa3's produced by the misconduct of agents. A large proportion of 
 them is caused by the recklessness of passengers. This is a great evil, 
 which we would not willingly encourage by allowing a premium on it to 
 be extorted from companies. However bad the behavior of those com- 
 panies may sometimes be, it would not be corrected by making them 
 pay for faults not their own. 
 
 The court should have instructed the jury that the evidence taken 
 altogether (or even excluding that for the defence), left the plaintiff 
 without the shade of a case. 
 
 Judgment reversed and venire facias de novo aivarded.
 
 GENERAL DOCTRINES. 25 7 
 
 Riding iu Unautliorized Manner. 
 
 NOTES. 
 
 § 1 . General Doctrines. — We have printed at the head of this chapter the case 
 of Morrissey v. The Wiggins Ferry Company ^ because it embraces a general state- 
 ment of a leading doctrine of the courts touching the subject of contributory 
 negligence, and an attempt to apply that doctrine to a case of the death of a pas- 
 senger through the negligence of the carrier. The rule there laid down originated 
 in the case of Davies v. Mann,^ decided in Ibe English Court of Exchequer in the 
 year 1842. The doctrine of this case has probably been more frequently cited,^ 
 less clearly understood, and more generally misapplied than any case relating to 
 the subject.' It is subject to the objection that in cases of mutual and concur- 
 ring negligence it compels one party to pay all the damages, although the accident 
 was the product of the fault of both parties. It can never be applied without 
 producing injustice, unless with one or the other of the following qualifications : 
 1. The defendant is not to be compelled to pay damages where there was negli- 
 gence of the plaintiff contributing to the injury, unless the defendant knew of the 
 negligence of the plaintiff in time to have saved the plaintiff from the injurious 
 consequences of it; or, 2. The jury should look to the negligence of the 
 plaintiff in mitigation of damages. A fcAV of the courts have adopted the first 
 qualification of the doctrine.* The second qualification is almost universally 
 denied by the courts.^ But without reference to the state of the law on the sub- 
 ject, it is believed that the doctrine of Davies v. Mann,^ reiterated in 3Iorrissey 
 v. Wiggins Ferry Company,'' cannot, as a general rule, be usefully applied to cases 
 of injuries to passengers by the negligence of carriers. The doctrine there laid 
 down is generally applied to cases of collisions of vessels at sea, collisions of 
 travellers on the highway, and collisions between travellers and railway trains. 
 
 § 2. Riding in an Unauthorized Manner. — (1.) Arm out of Window. — It is 
 frequently stated as a proposition of law that if the passenger allows any por- 
 tion of his body to extend beyond the base of an open car-window while tht- 
 train is in motion, such conduct is negligence per se, which disentitles the plain- 
 tiff to recover for any injuries received in consequence of coming in contact with 
 any obstruction outside.* The reasons for this rule are nowhere better stated 
 than in the language of Thompson, C. J., in Pittsburgh, etc., Bailroad Company v. 
 McClurg:^ "A passenger, on entering a railroad car, is presumed to know the use 
 of the seat and the use of a window : that the former is to sit in, and the latter 
 is to admit light and air. Each has its separate use. The seat he may occupy 
 in any way most comfortable to hl.aself. The window he has a right to enjoy, 
 
 » 10 Mee. & W. 545 ; «. c. 2 Thomp. on Neg. ' Ante, p. 243. 
 
 p. 1105. 8 Todd V. Old Colony etc. R. Co., 3 Allen, 
 
 2 For subsequent citations of this case 18; ». c. 7 Allen, 207; Pittsburgh etc. R. Co. 
 see the table of cases of this work. v. Andrews, 39 Md. 329; Indianapolis etc. R. 
 
 3 See an examination of this case in 2 Co. r. Rutherford, 29 Ind. 82; Morel v. Mis- 
 Thomp. on Neg., p. 11.55. sissippi Ins. Co., 4 Bush, 535 ; Pittsburgh etc. 
 
 < 2 Thomp. on Neg , pp. ll.'jG, 1157, and R. Co. v. McClurg, 56 Pa. St. 294; Louisville 
 
 citations. '■> Id., pp. 1146, 1162. etc. R. Co. v. Sickings, 5 Bush, 1; Holbrook 
 
 6 10 Mee. ftW. 545; «. c. 2 Thomp. on Neg., v. Uticu etc. R. Co., 12 N. Y. 236. 
 p. 1105. 9 56 Pa. St. 294. 
 
 17
 
 258 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 but not to occupy. Its use is for the benefit of all, — not for the comfort alone 
 of him who has by accident got nearest to it. If, thei-efore, he sit with his elbow 
 in it, he does so without authority; and if he allow it to protrude out, and is 
 injured, is this due care on his part? He was not put there by the carrier, nor 
 invited to go there, nor misled in regard to the fact that it was not a part of 
 the seat, nor that its purposes were not exclusively to admit light and air for the 
 benefit of all. His position is therefore witliouf authority. His negligence con- 
 sists in putting his limbs where they ought not to be, and liable to be broken, 
 without his ability to know whether liiere is danger or not approaching. In a 
 case, therefore, where the injury stands confessed, or is proved to have resulted 
 from the position voluntarily or thoughtlessly taken in a window, by contact 
 with outside obstacles or forces, it cannot be otherwise characterized than as 
 negligence, and so to be pronounced by the court." ^ 
 
 On the contrary, the judgment of Cole, J., in Spencer v. Milwaukee, etc. Rail- 
 road Company '^ forcibly expresses views which would seem to demonstrate that 
 the question of negligence in cases of this character may ordinarily be properly 
 submitted to the jury. He said : " It is probably the habit of every person, while 
 riding in the cars, to rest the arm upon the base of the window. If the window 
 is open, it is likely to extend slightly outside. This, we suppose, is a common 
 habit. There is always more or less space between the outside of the car and 
 any structure erected by the side of the track, and must necessarily be so to 
 accommodate the motion of the car. Passengers know this, and must regulate 
 their conduct accordingly. They do not suppose that the agents and managers 
 of the road suffer obstacles to be so placed as barely to miss the car while pass- 
 ing. And it seems to us almost absui'd to hold that in every case, and under all 
 circumstances, if the party injured had his arm the smallest fraction of an inch 
 beyond the outside surface, he was wanting in ordinary care and prudence. Of 
 course, a case might be supposed where carelessness would be clearly apparent 
 from the circumstances. If a passenger should ride with his body lialf out of 
 the car, or with his arms or his feet so protruded that they would inevitably 
 expose him to danger and collision, we should have no hesitation in saying he 
 was utterly reckless." 
 
 The foregoing remarks present a reasonable view of this question. Passen- 
 gers cannot be expected to sit bolt upright for a succession of days or hours, nor 
 do they. The frames of men are not of cast-iron, and no rule of law should be 
 predicated upon the contrary supposition. It is perhaps not too strong a state- 
 ment that no person ever travelled upon a railway train without at some time 
 resting his arm upon the window-sill at least, if not permitting it to protrude 
 slightly. Conduct which is universal is necessarily that of persons reasonably 
 prudent. As pointed out by the learned judge last mentioned, it is easy to dis- 
 tinguish between conduct in this particular which is so imprudent as to leave 
 no room for speculation as to negligence, and that which may properly be sub- 
 mitted to the consideration of the jury. 
 
 1 The court in this case expressly over- ger's extended arm was broken by coming 
 
 ruled ctie earlier case of New Jersey etc. R. in contact with a bridge, the carrier would 
 
 Co. V. Kennard, 21 Pa. St. 203, establishing not be responsible for the injury if he gave 
 
 the contraiy principle. In Laing v. Colder, timely notice of the danger, which the plain- 
 
 8 Pa. St. 179, it was held that if the passen- tiff might have avoided. - 17 Wis. 487.
 
 RIDING IN UNAUTHORIZED MANNER. 259 
 
 Upon the Platform of the Car. 
 
 The Supreme Court of Wisconsin does not stand alone in this position. In 
 Chicago^ etc. Bailroad Company v. Pondrom,^ it was held (under the rule of com- 
 parative negligence prevailing in Illinois) that where a passenger's arm slightly 
 projected outside the window, and was broken in passing a freight-train, the neg- 
 ligence of such person was slight, compared with the negligence of the railroad 
 company in permitting its freight-cars to stand so near the track of its passen- 
 ger-train, and a recovery might be had for the injury sustained.^ 
 
 (2.) Upon the Car Platform. — Although it is the duty of the passenger to 
 occupy a seat inside of the car when any are to be obtained, yet, as a general 
 rule, the presence of the passenger upon the platform when the car is in motion 
 is not at all times unjustifiable. It may be that proper provision is not made 
 for his accommodation inside, or that he is riding upon the platform by the 
 direction or consent of the company's servants. Thus, in Willis v. Long Island 
 Railroad Company,^ the plaintiff, with others, was forced to take a position on the 
 platform of the car, on account of all the seats being taken and the passage-way 
 in the car being occupied by other passengers. The conductor received his fare, 
 and did not inform him that there were vacant seats in other cars of the train. 
 A collision took place between this train and another, and the plaintiff was 
 injured. The Court of Appeals, affirming the decision of the Supreme Court, 
 held that the position of the plaintiff did not of itself, independent of the stat- 
 ute in New Yoi'k on this subject,* bar his recovery of damages for his injuries. 
 Porter, J., said: "There is no rule of the common law which makes it the 
 duty of the passenger to select a position in the vehicle least exposed to danger 
 through the wrongful act of the proprietor, A seat on the outside of a stage- 
 coach may be more hazardous than an inside seat, if the driver negligently over- 
 turns it on a pavement or a hillside ; but the selection of that position is neither 
 negligence per se, nor tributary to it." ^ Smith, J., in commenting on the stat- 
 ute which enacts that a railroad company shall not be liable to passengers for 
 injuries received while standing on the platform, provided it " furnished room 
 inside its passenger-cars sufficient for proper accommodations of the passen- 
 gers," stated that the language meant a seat for each passenger, and not merely 
 standing-room in the passage-way. It meant also a vacant seat, and not one 
 occupied by another passenger, either with his person or his luggage, although so 
 occupied improperly. A seat should be furnished by the company.^ It was not 
 the duty of the passenger, at the risk of trespassing on the rights of another, or 
 engaging in a personal controversy, to compel another to yield a portion of the 
 seat so occupied. Although there were vacant seats in other parts of the train 
 the plaintiff was not obliged to incur the peril of passing from one car to 
 another while the train was in motion. Neither was it incumbent upon him to 
 crowd himself into the passage-way of the car. "That part of the car is 
 just what its name indicates, — a way through the car. Each passenger seated 
 
 1 51 111. 333. 6 Mo. App. 471 ; s. c. 6 Cent. L. J. 335; Seigel 
 
 2 See also Winters v. Hannibal etc. R. Co., v. Eisen, 41 Cal. 109. 
 
 39 Mo. 468; Barton v. St. Louis etc. R. Co., 52 a 32 Barb. 399; s. c. 34 N. Y. 670. 
 
 Mo. 253. It is not negligence per se for a pas- * Laws 1850, chap. 140, § 46; 3 Edm. Stats. 
 
 senger to expo.«e his hand or arm outside of at Large, 036, § 46. 
 
 a street car. Miller v. St. Louis etc. R. Co., •' Sec Keith r. Pinkhain, 43 Me. 501. 
 
 <> See also Davis v. Kailroad Co., 53 Mo. 317.
 
 260 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 in the car has a right to pass along the way at any and all times, and he there- 
 fore has a right to insist that it shall be at all times open and unobstructed. 
 The company cannot rightfully compel a passenger to stand in it, instead of fur- 
 nishing him with a seat ; and even if he consents to do so, they have no right to 
 place him there as against the passengers who are seated." ^ 
 
 The foregoing case undoubtedly puts this matter in the most favorable light 
 possible for the passenger. It is also held in other cases that the presence of 
 the passenger upon the platform when the train is in motion is not per se negli- 
 gence .'■' 
 
 The statute in New York, previously noticed, is regarded as penal in its nature, 
 and therefore is strictly construed. It provides that a person injured while stand- 
 ing on the platform of a car cannot sustain an action for the injury, provided 
 a notice is posted inside the car forbidding passengers to take such a position, 
 and there is room inside of the car. This does not prevent a recovery by a 
 passenger injured while standing on the platform, where the car is full inside, 
 and the only notice not to occupy the platform is posted outside of the car, and 
 is not shown to have come to such passenger's knowledge.* 
 
 In some States a less favorable view is taken of the passenger's position, in 
 cases of this character. Thus, in Hickey v. Boston, etc. Bailroad Company, ^^ the 
 Supreme Judicial Court of Massachusetts laid down the general rule that a pas- 
 senger cannot recover damages for a personal injury sustained by him in conse- 
 quence of his voluntarily and unnecessarily standing upon the platform of a 
 passenger-car while the train is in motion. The facts of this case were, that it 
 was the custom of the train-meu to uncouple the engine and smoking-car from 
 the rest of a passenger-train on approaching a certain station, so that the former 
 might be switched off on a side track and the remainder of the train run slowly 
 upon the main track to the station. Passengers in the smoking-car were accus- 
 tomed to pass from thence to the platform of the first passenger-car, just before 
 the uncoupling, and remain there until the train reached the station. This was 
 done by the express permission of the conductor and brakemen, and without 
 objection from the superintendent and directors, who knew of the practice. On 
 one occasion the engine and smoking-car ran off upon the wrong track, in conse- 
 quence of the displacement of a switch, and part of the smoking-car was thrown 
 across the main track. The remainder of the train, following upon the main 
 track, came into collision with this obstruction, and the plaintiff's husband, who 
 was riding upon the front platform of the first car, was fatally injured. The 
 court held that the express permission of the managers of the train, and the 
 implied assent of the oflicers of the corporation to the passenger occupying this 
 position, did not change the relations between the parties, nor their several 
 obligations. Because the passenger rightfully occupied the position in question, 
 it did not follow that it was at the risk of the corporation. If suflicient and 
 suitable provision were made within the cars for all passengers, the managers of 
 the train were under no obligation to restrict them to their proper places, nor to 
 
 1 34 N. Y. 682. 657; s. c. 36 N. Y. 135. See also Colegrove v. 
 
 2 Zemp V. Wilmington etc. R. Co., 9 Rich. New York etc. R. Co., 6 Duer, 382; s. c. 20 N. 
 L. 84; Lafayette etc. R. Co. v. Sims, 27 Ind. Y. 492; Carroll v. New York etc. R. Co., 1 
 59; Macon etc. R. Co. v. Johnson, 38 Ga. 409. Duer, 571, 579. 
 
 3 Clark V. Eighth Avenue R. Co., 32 Barb. ■• 14 Allen, 429.
 
 RIDING IN UNAUTHORIZED MANNER. 261 
 
 Upon the Platform of the Car. 
 
 prevent them from acts of imprudence. Very much the same view was taken by 
 the Supi-eme Court of Illinois in Quinn v. Illinois, etc. Railroad Company.'^ The 
 plaintiff's husband voluntarily placed himself, with several others, upon the plat- 
 form and steps of the car, when there was abundant standing-room inside, though 
 the seats were all full, and, in an endeavor to recover a bank-bill which was blown 
 away while passing from the hand of the conductor to that of the passenger, fell 
 against an embankment, and was thrown back under the cars and killed. The 
 court held that the death of the passenger could be attributed only to his own 
 recklessness.^ 
 
 Special circumstances may make it necessary for a passenger to stand upon 
 the platform, and thereby excuse what would otherwise be negligent conduct. 
 Thus, where the plaintiff, in the performance of his duty as a guard over prL^on- 
 ers, was required to stand at the door of a car, it was held that he was not in 
 fault for so doing. ^ 
 
 It is almost needless to add, that if a passenger, seeing a collision of trains to 
 be inevitable, rushes to the door of the car in which he is riding, with the inten- 
 tion of jumping off the train, and is caught and injured while upon the platform, 
 the ordinary inhibition against riding upon the platform has no application to his 
 case.* One cannot through his default put another in peril, and then demand 
 that he shall exercise the highest degree of prudence in extricating himself.^ 
 
 In the absence of a statute upon this subject, it is evident that the position of 
 a passenger on the platform of a street car is not subject to the same rule as that 
 of a passenger on the platform of a steam-railroad car. The cars of the former 
 do not run at the same speed, are not attended with the same danger, as those of 
 the latter, and the rules applicable to one seldom are to the other.* Therefore it 
 is held that riding upon the outside platform of a street-railroad car is not such 
 a want of ordinary care as to prevent a recovery for an injury sustained by being 
 thrown therefrom,'' even though there is room inside.^ In Spooner v. Brooklyn 
 City Bailroad Company,^ the plaintiff was a passenger upon a stage-sleigh run 
 by the defendant. The sleigh was provided with wide foot-boards or guards on 
 the sides, upon which passengers usually rode when the seats were occupied. 
 Hand-rails were placed on the ends of the seats, for the convenience of those 
 standing on the foot-boards. Passengers were received to ride there, and their 
 
 1 51 111. 495. in compelling a lad who had paid his fare to 
 
 2 See also Higgins v. Harlem etc. R. Co., 2 give up his seat and stanil upon the front 
 Bosw. 132. Compare Clark v. Eighth Avenue platform, has been held sufficient to absolve 
 K. Co., 36 N. Y. 135. this passenger from the imputation of negli- 
 
 3 Truex v. Erie R. Co., 4 Lans. 198. gence in this particular. The company was 
 ■• Buel V. New York etc. R. Co., 31 N. Y. therefore res|)onsible for his death, caused 
 
 314. But see Collins v. Albany etc. R. Co., 12 by being thrown from the car by the hasty 
 
 Barb. 492. and careless departure of another passen- 
 
 '■' Jones V. Boyce, ante, p. 246; Ingalls v. ger. Sheridan v. Brooklyn City etc. R. Co., 
 
 Bills, on<e, p. 112; Stokes t;. Saltonstall, an<e, 36 N. Y. 39. 
 |). 183. ** Maguire v. Middlesex R. Co., 115 Mass. 
 
 '' Lynam v. Union R. Co., 114 Mass. 83; 239; Burns v. Bellefontaine R. Co., 50 Mo. 
 
 Miller V. St. Louis etc. R. Co., 5 Mo. App. 139. But see Baltimore R. Co. r. Wilkinson, 
 
 471 ; ». c. 6 Cent. L. J. 335. 30 Md. 224; Ward v. Central Park R. Co., 11 
 
 ' Meesel v. Lynn etc. R. Co., 8 Allen, 234; Abb. Pr. (n. s.) 411. 
 Augusta etc. R. Co. v. Renz, .55 Ga. 126. The '•' 54 N. Y. 230 (reversing ». c. 31 Barb. 
 
 ..ut of the conductor of a street -railroad car 419).
 
 262 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 fares collected without objection. No seat being accessible to the plaintiff, he 
 rode in this manner, and was injured by a collision Avith another sleigh. It wa-; 
 held that his conduct was not negligent per se, but whether it was negligent was 
 proper to be considered by the jury. 
 
 (3.) In the Baggage-Gar. — It is no doubt a reasonable regulation that passen- 
 gers shall not ride in the baggage-car. The safety of the passenger, the unim- 
 peded discharge of duty by tlie company's servants, and the security of property 
 are considerations in support of this rule. All passengers are probably awaro 
 that the hazards of travel are increased by riding in this portion of the train. 
 But if they choose to ride there, and do so with the knowledge of, and without 
 objection on the part of, the conductor of the train, the company cannot take 
 advantage of their regulation in this particular to charge the passenger with neg- 
 ligence. The conductor is vested with discretion in the discharge of his duties, 
 and the company is responsible for the exercise of it.' The language of Bos- 
 worth, J., in an important case,* on this subject, fully explains the relations of 
 passenger and carrier in cases of this kind: " He took a seat in the post-office 
 department of the baggage-car. The position was injudiciously chosen, and may 
 be assumed to have been known to him to have been a far more dangerous one 
 than a seat in a passenger-car. But he took it with the assent of the conductor. 
 He was not there as a trespasser, or wrongfully, as between him an J the defend- 
 ants. So far as all questions involved in the decision of this action are con- 
 cerned, he was lawfully there. His being there was not such negligence, in the 
 legal sense of the term, as exonerates the defendants from the consequences of 
 injuring him by such culpable negligence as consists in running two trains of 
 their cars so violently into each other as to entirely demolish the car in which he 
 was sitting."* 
 
 Even though the passenger is duly informed of a regulation excluding passen- 
 gers from the baggage-car, yet if he is suffered to remain there he does not do 
 so at his peril ; the company is still under the obligation to exercise the highest 
 care for his safety.* 
 
 In many of the States it is provided by statute, as in New York, that " in case 
 any passenger on any railroad shall be injured while ou the platform of a car, 
 or on any baggage, wood, or freight car, in violation of the* printed regulations 
 of the company, posted up at the time in a conspicuous place inside of its pas- 
 senger-cars then in the train, such company shall not be liable for the injury; 
 provided such company at the time furnished room inside its passeuger-cars 
 sufficient for the proper accommodation of passengers."^ The company must 
 strictly comply with the terms of this statute in order to secure its benefit ;^ but 
 
 1 O'Donnell v. AJlegheny etc. R. Co., 59 "It is not enough for the plaintiff to show 
 Pa. St. 239; Watson t?. Northern R. Co., 24 that Hickey was rightfully upon the plat- 
 Upper Canada Q. B. 98. form. Because he might rightfully occupy 
 
 - Carroll v. New York etc. R. Co., 1 Duer, whatever place the conductor should per- 
 
 511. mit, it does not follow that he would do so at 
 
 3 Contra is the principle of the decision of the risk exclusively of the corporation." 
 
 the Supreme Judicial Court of Massachu- ■• Jacobus v. St. Paul etc. R. Co., 20 Minn. 
 
 setts in Hickey v. Boston etc. R. Co., U Al- 125; s. c. 1 Cent. L J. 375. 
 
 leu, 429. This was the case of a passenger ^ Laws N. Y. 1850, chap. 140, § 46; 3 Edm. 
 
 injured while riding upon the platform of Stats, at Large, 636, § 46; Wag. Mo. Stats, 
 
 one of two colliding cars, with express per- 312, § 45. 
 
 mission of the conductor. Said Wells, J.: * Carroll v. New York etc. R. Co., 1 Duer,
 
 RIDIXG IN UNAUTHORIZED MANNER. 263 
 
 In Various Positions. 
 
 having done so, its immunity from liability for injuries from "this source is 
 complete. 1 
 
 (4.) In Various Positions. — The passenger is not, as a matter of law, obliged 
 to remain in his seat from the time he first takes it until the train comes to a 
 final stop at his destination.^ Therefore it is a question for the jury whether he 
 is lacking in reasonable care in leaving his seat and standing in the passage-way 
 of the car, for the purpose of hastening his departure, after the approach of the 
 train to the station at which he is to alight has been announced ; ^ or in stand- 
 ing in the aisle and making preparations to leave by brushing and plaiting a 
 child's hair; * or, having entered a car, and finding no seats vacant, in continuing 
 to stand, looking about for a seat.* 
 
 In Gee v. Metropolitan Bailway Company,^ the passenger got up from his seat 
 and put his hand on the bar which crossed the window of the door of the car- 
 riage, for the purpose of looking out to see the signal-lights and to show then; 
 to a fellow-passenger. Leaning forward a little upon the door, it flew open, and 
 he fell out and was injured. There was no further evidence as to the construc- 
 tion of the door and its fastenings. The jury having found for the plaintiff, leave 
 was reserved to enter a nonsuit, on the groui. I that there was no evidence of 
 the defendants' liability. It was held by the Court of Exchequer Chamber 
 (afiirming th** decision of the court below) that the verdict ought to stand. 
 Said CocKBXTRN, J. : " The passenger did nothing more than that which came 
 within the scope of his enjoyment while travelling, without committing any 
 imprudence. In passing through a beautiful country, he certainly is at liberty to 
 stand up and look at the view ; not in a negligent, but in the ordinary manner of 
 people travelling for pleasure." But a passenger is not justified in leaving hi> 
 seat and incurring a known and ascertained danger for the purpose of obviating 
 a slight inconvenience. Thus, in Adams v. Lancashire, etc. Bailway Company,' 
 the door of the compartment of the carriage in which the plaintiff was riding 
 flew open three times, and each time the plaintiff succeeded in shutting it without 
 accident. The weather was pleasant. There was room in the carriage for the 
 plaintiff to sit away from the door, and the train would have stopped at a station 
 in three minutes. The door opened a fourth time, and in endeavoring to shut 
 it again, the plaintiff fell out and was hurt. It was held that he had no right to 
 run the risk of attempting to shut the door; and although there was evidence of 
 the defendants' negligence from the defective condition of the lock, yet the 
 injury suffered was not the necessary or natural result of the company's negli- 
 gence, and they were not liable for the injury.* 
 
 571 ; Clark v. Eighth Avenue R. Co., 32 Barb. ^ £,. R. 4 0. P. 739. 
 
 657; s. c. 36 N. Y. 135; Colegrove v. Harlem 8 jn Gee v. Metropolitan R. Co., supra, 
 
 etc. H. Co., 6 Duer, 382; s. c. 20 N. Y. 492. the princii)le declared in this case was ap- 
 
 • Iliggins V. Hannibal etc. R. Co., 36 Mo. proved, Imt its application to the facts 
 
 418. therein denied, by Mr. Justice Keating. In 
 
 2 Gee V. Metropolitan R. Co., L. R. 8 Q. reading this case it Is essential to bear in 
 B. 161. mind the difference in construction between 
 
 3 Barden v. Boston etc. R. Co., 121 Mass. railway coaches In this country and the 
 426; 8. c. 16 Am. L. Ueg. 664. passenger carriages in England. The doors 
 
 ^ Railroad Co. v. Pollard, 22 Wall. 341. in the latter are on the side of the carriage, 
 
 6 Pollard V. X. Y'. etc. R. Co., 7 Bosw. 4.37. opening outwards, and are regularly locked 
 
 « L. R. 8 Q. B. 161; 8. c. 42 L.J. (Q. B.) 105; and unlocked by the guard at the beginning 
 
 1\ Week. Rep. 584; 28 L. T. (N. 8.) 582. and end of the Journey.
 
 264 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 A passenger cannot be said to be in tlie exercise of due care who voluntarily 
 and unnecessarily places his hand upon the framework of the door of the car- 
 .iage, so that when the door is closed it must be inevitably crushed. Thus, in 
 Richardson v. Metropolitan, etc. Bailway Company,^ a passenger, after getting 
 uto a carriage of a train on the defendants' railway, left his thumb for the space 
 of half a minute in the door-jamb ; the guard, after crying out to the passengers 
 to take their places, shut the doors of the carriages, and, not seeing the plain- 
 iff 's thumb, crushed it in so doing. The evidence demonstrated that the doors 
 were shut in the ordinary manner, and the accident was attributable only to the 
 plaintiff's negligence. This case was distinguished from that of FordhaniY. 
 London, etc. Bailway Company,"^ where the plaintiff, in getting into the railway 
 carriage, having a parcel in his right hand, placed his left hand on the back of the 
 open door, to aid him in mounting the step. There was conflicting evidence as to 
 whether there was a proper handle affixed to the carriage, to the right of the 
 door. The night was dark, and the plaintiff did not see any handle. Before he 
 had completely entered the carriage, the guard, without any previous warning, 
 closed the door, and crushed his hand between the back of the door and the door- 
 post. The Court of Exchequer Chamber (affirming the decision of the court 
 below) held that there was evidence of negligence on the part of the company's 
 servant, and no evidence of such contributory negligence on the part of the 
 plaintiff as to entitle the defendants to a nonsuit. So also, in Coleman v. Soiith- 
 Eastern Bailway Company,'^ the plaintiff, a boy twelve years of age, in company 
 with his father, had entered a third-class carriage at night, and, in feeling for a 
 seat, placed his hand on the door-jamb, which was very near the seat. The 
 porter at that moment violently closed the door, which crushed the plaintiff 's 
 Angers and struck his father, who entered after him, on the back. It was held 
 that the evidence of negligence on the part of the porter was properly submitted 
 to the jury, and that there was no contributory negligence on the part of the 
 plaintiff. 
 
 A case of this character has lately come before the House of Lords,* the facts of 
 which were these : The plaintiff was a passenger on the defendants' railway, the 
 carriage in which he rode being overloaded. When the train arrived at a certain 
 station, the door was opened by people from the outside, who endeavored to crowd 
 their way in. The plaintiff voluntarily rose, or partly rose, from liis seat to push 
 these pei'sons back. The train happened to move on. The plaintiff was jerked 
 forward, and put his hand on the hinge of the carriage door at the very moment 
 the door was in course of being shut by the porter, in consequence of which the 
 i^laintiff 's thumb was injured. . It was not proved that the porter saw the plain- 
 tiff fall forward, or could have prevented the accident. It was therefore held that 
 what happened was a pure accident, and that the defendants were not respon- 
 sible. 
 
 It is not negligence, as a matter of law, for a passenger to follow the direction 
 given by a servant of the railroad company, and to pass from one car to another 
 i:or the purpose of finding a seat. It is properly left to the jury to say whethei- 
 the passenger was guilty of negligence, in view of the direction given, in 
 
 1 37 L. J. (C. P.) 300. t Metropolitan R. Co. v. Jackson, 3 App 
 
 2 L.R. 3C.P. 368; «. c. 37 L. J. (C. P.) 176; Cas. 193 ;s. c. L. R. IOC. P. 49; 44 L.J. (C. P.) 
 L. R. 4 C. P. 619. ' 4 Hurl. & Colt. 699. S3.
 
 RIDING IN UNAUTHOIllZED MANNER. 265 
 
 In the Bao;s:age-Car. 
 
 attempting to pass at once from one car to another, although the cars were in 
 rapid motion, the night dark, rain and sleet falling and freezing, and none of 
 the company's employees at hand to render assistance in the passage.^ So also 
 it is the province of the jury to determine both the nature and effect of the 
 conductor's remarks; whether they were intended and understood as an order 
 to change from car to car, or were by way of advice, and also whether such 
 remarks affected the action of the passenger, and caused him to act differently 
 from the manner in which he otherwise would have acted. ^ 
 
 There are certain portions of every carrier's vehicles which are so obviously 
 dangerous for a passenger to occupy, and so plainly not designed for his recep- 
 tion, that the presence of the passenger there will constitute negligence as a 
 matter of law, and preclude him from claiming damages for injuries received 
 while in such position. For instance, the engine would seem to be a place 
 designed exclusivel}' for the employees of a railroad company, even in the 
 absence of regulations forbidding the presence of passengers thereon. There- 
 fore a person who applied to the engineer of a train for permission to ride upon 
 his engine, and was informed that it was against the rules of the company to 
 carry him in that place, but finally obtained the engineer's consent and rode 
 there, paying no fare, and without the knowledge of the conductor, was held to 
 be a wrong-doer, and unlawfully in such position, and properly nonsuited in an 
 action for damages received in consequence of the engine running upon an 
 obstruction on the track.^ So also a laborer in the employ of the railroad 
 company on a construction-train, being told by the person in charge of the train 
 that they were behind time and must hurry, and to "jump on anywhere," 
 climbed upon the pilot of the locomotive, and rode there until he was injured by 
 a collision of the engine with cars standing upon the track. The train consisted 
 of the locomotive, tender, and box-car in which he ought to have ridden. He 
 had previously been warned against riding on the pilot by the person who gave 
 the order to jump on at this time. The Supreme Court of the United States 
 held that riding in this position constituted negligence per se, and that neither 
 the direction to "jump on anywhere," nor the knowledge of the engineer that 
 he was riding in this position, in any manner justified his doing so. Swayne, 
 J., said : "As well might he have obeyed a suggestion to ride on the cow-catcher, 
 or put himself on the track before the advancing wheels of the locomotive."* 
 
 1 Mclntyre v. New York etc. R. Co., 37 N. Co. v. Montgomery, 7 Ind. 474). The plaintiff 
 Y. 287. got upon a gravel-train of the defendants, 
 
 2 Cleveland etc. R. Co. v. Manson, 30 and was informed by the engineer liaving 
 Ohio St. 4.51. charge of the locomotive and train of his 
 
 '■' Robertson v. New York etc. R. Co., 22 orders to transport no passengers. How- 
 Harb. 91. .See also Doggett v. Illinois etc. ever, he paid his fare to the engineer, who 
 R. Co., 34 Iowa, 2S4, where the passenger consented to his riding on the tender of the 
 voluntarily got upon the tender of the locomotive, but directed him not to go upon 
 engine to ride, an4 while in this position the cars. Ky a collision of trains the plain- 
 was killed by the engine breaking through a tiff was injured. It was held that although 
 defective culvert. A caboose was attached the plaintiff was acting at the time in dis- 
 to the train for passengers, and it appeared obedience of a proper order to secure his 
 that if the deceased had been in there he safety, it should also appear that the injury 
 would have escaped injury. On these facts, was occasioned by such disobedience. See 
 he was held to have been clearly guilty of Keith v. Pinkham, 43 Me. ."iOl. 
 contributory negligence. Contra is the •• Railroad Co. t;. Jones, fl.T U. S. 43!>; «. c. 6 
 judgment of the Supreme Court of Indiana Cent. L. J. 45, an<e, p. 248. Compare with this 
 in an early (■■^<c (T.awrencebiirgli etc. I?. case a decision by the same learned justice
 
 2G(i CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 If a passenger occupies a position designed for tiis reception, it cannot be said 
 as a matter of law tliat he is guilty of negligence in remaining in such position, 
 althoi^gh another might be safer. Thus, it was held to be a question for the jury 
 whether a passenger on a steamboat, injured by the fall of a boat upon him, was 
 in the exei'cise of due care in taking his position under the boat, suspended over 
 a part of a deck where it was proper for passengers to be, and iu continuing to 
 stand there without attempting to move away, while he saw two or three persons 
 enter it in addition to two others whom he had previously noticed there. * A pas- 
 senger, however, in search of a water-closet, without making proper inquiries, 
 is not at liberty to go upon any part of the boat, into places not designed for the 
 reception of passengers and under circumstances of danger.'^ So also a passen- 
 ger on a railway train, having escaped uninjured from a car which caught fire, as 
 there was evidence tending to show, by the negligence of the company, was 
 held guilty of such negligence that he could not recover for burns and other 
 injuries received in rushing back into the car again for the purpose of recov- 
 ering his valise.* 
 
 § 3. Leaping on or off Cars in Motion. — Circumstances may justify an act of 
 this kind. In Jones v. Boyce,* Lord Ellenborough said: " If I place a man in 
 such a situation that he must adopt a perilous alternative, I am responsible for 
 the consequences." Therefore if a passenger in a coach, by reason of peril aris- 
 ing from an accident for which the proprietors thereof are liable, is in so dangerous 
 a situation as to render his leaping from the coach an act of reasonable precau- 
 tion, and he leaps therefrom and injures himself, the proprietors are answerable 
 to him in damages, though he might safely have retained his seat.^ And the rule 
 
 (Indianapolis etc. R. Co. r. Horst, 93 U. S. 291; ger until the catastrophe was upon him. 
 
 s. c. 15 Alb. L. J. 61), tlie facts of which were The behavior of the conductor was inex- 
 
 as follows: The plaintiff and other drovers, cusable. If tliere was fault on the part of 
 
 in charge of cattle upon a train, were the plaintiff, in what did it consist? We 
 
 directed by the conductor to get out of the find nothing in the record which affords 
 
 caboose and get on toi) of the train, as the any warrant for such an imputation." 
 
 caboose was to be delMched, stating that A regulation by which a passenger with 
 
 at some distance further up the road he live-stock on the freight-train is required to 
 
 would attach another. The train wa^• at remain on the cars which contain his stock 
 
 rest, and the plaintiff and others did as the is not so transgressed by his being in an- 
 
 conductor told them to do. By a violent other part of the train, when it is at rest, 
 
 jerking and backing of the train the plaintiff by the direction of the conductor, as to 
 
 was thrown down between the ends of two make him a contributor to his own injury 
 
 cars. On these facts the court expressed by that train bcip.g run into by another, 
 
 itself as follows: "We have said that riding Pennsylvania R. Co. v. McCloskey's Admin - 
 
 on the to]) of a freight-car in the night istrator, 23 Pa. St. 526. 
 
 involved peril. When commanded to go ' Simmons v. New Bedford etc. Steamboat 
 
 there, the plaintiff had no choice but to Co., 97 Mass. 301 ; s. c. 100 Mass. 34. See also 
 
 obey, or to leave his cattle to go forward Greenland v. Chaplin, 5 Exch. 243; Willis i\ 
 
 without any one to accompany and take Long Island etc. R. Co., 34 N. Y. 670. 
 
 care of them. The command was wrong. 2 uougant'. Champlain Transp. Co.,6Lans. 
 
 To give him no warning was an aggravation 430. 
 
 of the wrong. He, however, rode safely to -^ Hay v. Great Western R. Co., 37 Upper 
 
 the switch, standing in one place. He had Canada Q. B. 456. 
 
 a riglit to assume that the posture and * 1 Stark. 493, aiite, p. 246. 
 
 place would continue to be safe. He had no ^ joues f. Tioyce, siqjra; Ingalls v. Bills, 
 
 foreknowledge of the coming shock. The an?e, p. 112; Stokes r. Saltonstall, o/ife, p. 183; 
 
 conductor knew it, but gave him no word of McKmney v. Neil, 1 McLean, 540; Friuk v. 
 
 caution or notice. He was unaware of dan- Potter, 17 111. 406.
 
 LEAPING ON OR OFF CARS IN MOTION. 267 
 
 Time for Passenger to alight. 
 
 here announced is applicable to passengers upon railway trains. Apprehending 
 a collision of trains, a passenger is justified in seeking safety in an endeavor 
 to leap from the car in which he is riding.i Although some degree of danger 
 may be imminent to a passenger remaining on board the train, yet the conduct 
 of the passenger in leaping from the train may evince such rashness that he is 
 not entitled to recover.'^ 
 
 When the passenger is not granted a reasonable length of time for alighting, 
 and will be subjected to the inconvenience of being carried beyond his destina- 
 tion, is he then justified in leaping from the train? The general rule is that he is 
 uot ; and he therefore is not entitled to recover for injuries received from such 
 an act.' But this rule is subject to exceptions. For instance, to step from a 
 car not yet beyond the platform, and whose motion is so slight as to be almost 
 or quite imperceptible, may not be negligence, and whether it is or uot is for 
 the jury to decide from the physical condition of the person and all the attend- 
 ant circumstances ; * or it may be a matter of such necessity that the passenger 
 should leave the train that he will be justified in making the attempt; ^ or the 
 passenger may act under the command or advice of the company's agents in so 
 doing; * or may be assisted off by the company's servants.' 
 
 The conduct of a passenger in running after or alongside a rapidly moving 
 train, and endeavoring to leap or climb upon it, is in general an indication of 
 such recklessness that he cannot recover for injuries received in the attempt.^ 
 Especially is this true in the case of a passenger endeavoring to climb upon a 
 car-platform already crowded, the train moving rapidly, and persisting in the 
 
 ' Buelv. NewYorketc. R. Co.,31N.Y. 314; will stop at the station, leaps off before it 
 
 Eldridge v. Long Island etc. R. Co., 1 Sandl. has come to a stop. Oiiio etc. R. Co. v. Strat- 
 
 S. C. 89; South-Western R. Co. ?;. Paulk, 24 ton, 78 111. SS; s. c. 3 Cent. L. J. 415. Compare 
 
 Ga. 356; Wilson v Nortliern Pacific R. Co. Keutucliy etc. R. Co. v. Dills, 4 Busli, 593. 
 (Sup. Ct. Minn. 1879), 10 Cent. L. J. 56. But < Doss v. Missouri etc. R. Co., 59 Mo. 27; 
 
 see Collins v. Albany etc. R. Co., 12 Barb. Illinois etc. R. Co. v. Able, 59 111. 131; Ken 
 
 492. tucky etc. R. Co. v. Dills, 4 Bush, 593. 
 
 - Galena etc. R. Co. v. Yarwood, 15 111. = Pennsylvania R. Co. v. Kilgore, 32 P;i. 
 
 468; 8. c. 17 111. 509; Galena etc. R. Co. v. St. 292; Lloyd i;. Hannibal etc. R. Co., 63 Mo. 
 
 Fay, 16 III. 558; Hill v. New Orleans etc. R. 509. 
 Co., 11 La. An. 292. c Georgia R. etc. Co. ■;;. McCurdy, 45 Ga. 
 
 3 RailroadCo.v. Aspen,an<e,p.252; Jeffer- 288; Lambeth «;. North Carolina R. Co., 66 N. 
 
 "onville etc. R. Co. v. Hendricks's Adminis- C. 494; Lovett v. Salem R. Co., 9 Allen, 557; 
 
 trator, 26 Ind. 228; Morrison V.Erie R. Co., 56 Filer w. New York etc. R. Co., 68 N. Y. 124; 
 
 .\. Y. 302 ; Burrows v. Erie R. Co., 63 N. Y. s. c. 59 N. Y. 351 ; 49 N. Y. 47 ; Pennsylvania R. 
 
 ."..56 (reversing s. c. 3 Thomp. & C. 556) ; Da- Co. v. McCloskey's Administrator, 23 Pa. St. 
 
 iiionti'. New Orleans etc. R. Co.. 9 La. An. 526. But it maybe a question for the jury 
 
 441 ; Dougherty v. Chicago etc. R. Co., 86 111. whether a reasonable man would have acted 
 
 467; Gavett v. Manchester etc. R. Co., 16 upon such advice. Hazard v. Chicago etc. 
 
 Gray, 501; Lucas v. New Bedford etc. R. R. Co., 1 Biss. 503; $. c. 26 111. 373; Chicago 
 
 Co., 6 Gray, 64; Ginnonj;. New York etc. R. etc. R. Co. t7. Randolph, 53 111. 510; Jefl'erson- 
 
 Co., 3 l!obt. 25. If the train has stopped a ville etc. R. Co. v. Swift, 26 Ind. 4.59; Pitts- 
 
 suflicient length of time for passengers to burgli etc. K. Co. v. Krouse, 30 Ohio St. 222. 
 get off, the attempt to do so after the train ^ Columbus etc. R. Co. v. Powell, 40 Ind. 37. 
 
 has started will be wholly inexcusable. Illi- » phiiHps v. Rensselaer etc. R. Co., 49 N. Y. 
 
 iiois etc. R. Co. V. Slatton, 54 111. 139. Or if 177; s. c. 57 Barb. 644; Chicago etc. R. Co. v. 
 
 the passenger gets off after being warned Scales (Sup. Ct. 111. 1879), 9 Cent. L. J. 167; 
 
 that the train has not yet reached the sta- Knight v. I'ontchartrain R. Co., 23 La. An. 
 
 tion. Ohio etc. R. Co. v. Schiebe, 44 111. 460. 462; Hubener v. New Orleans etc. R. Co., 2a 
 
 Or if the passenger, knowing that the train La. An. 492.
 
 2t)8 CONIRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 attempt, although once shaken off by the jerking of the train. i But this rule is 
 subject to qualification. It has been held that the mere fact that the train is dis- 
 tinctly moving, or under way, does not in evei-y case make it negligence, in law, 
 to make the attempt ; especially where, by reason of the negligence of the train- 
 men, a reasonable opportunity has not been given to get on. Such a case should 
 be submitted to the jury.^ 
 
 We have previously noticed there is little analogy between the operation of 
 steam-cars and the vehicles ordinarily run upon street-railroad tracks. There- 
 fore it would seem to have been properly held that it is not negligence, as a 
 matter of law, for a passenger to leap from a street-railroad car while in motion, 
 after a failure on the part of the persons managing the same to bring it to a 
 stop when requested.* 
 
 § 4. Getting on and off Train at a Dangerous Place. — When, by reason of 
 the insufficiency of the station, or length of the train, or negligence in the 
 operation of it, passenger-cars are brought to a stand at places where there is 
 no landing or other conveniences for getting off the train, if it is reasonable to 
 suppose that no better opportunity will be granted for this purpose, the passen- 
 ger may alight, although the position is inconvenient or slightly dangerous. If 
 the company's servants have given the passenger an express invitation to alight,* 
 or their conduct is such as to imply an invitation, ^ the passenger will be justified 
 in making the attempt. But if the passenger is aware that the train is not 
 opposite a platform, and in alighting at such a place is guilty of a reckless indif- 
 ference as to his safety, he cannot recover for injuries received.^ 
 
 1 Phillips V. Rensselaer etc. R. Co., supra. C. P. 461, note (1) ; Thompson v. Belfast etc. 
 See also Harper v. Erie R. Co., 32 N. J. L. 88. R. Co.. Irish Rep. 5 C. L. 517 ; Scott v. Dub- 
 
 2 Johnson V. West Chester etc. R. Co., 70 lin etc. R. Co., 11 Irish C. L. (x. s.) 377; 
 Pa. St. 357; s. c. 11 Am. L. Reg. 159. Nicliolls v. Great Southern R. Co., Irish Rep. 
 
 3 Wyatt V. Citizens' R. Co., 55 Mo. 485; 7C. L. 40; Weller v. London etc. R. Co., L. 
 Crissey v. Hestonville etc. R. Co., 75 Pa. St., R. 9 C. P. 12fi; s. c. 43 L. J. (C. P.) 137; 22 
 83; Philadelphia etc. R. Co. v. Hassard, 75 Week. Rep. 302; 29 L. T. (N. s.) 888; Praeger 
 Pa. St. 307; s. c. 1 Cent. L. J. 373. Contra, v. Bristol etc. R. Co. (MS.), 24 L. T. (N. S.) 
 Nichols V. Sixth Avenue R. Co., 38 N. Y. 131. 105 (stated at length in L. R. 7 C. P. 323) ; 
 But in this case the courtruled that the mere Cockle v. London etc. R. Co., L. R. 7 C. P. 
 preparation to leave a street-car while in 321; s.c. 41 L.J. (C. P.) 140; L. R. 5 C. P. 457; 39 
 motionisnotof itself negligence, if there are L.J. (C. P.)226; 27 L. T. (N. s.)320; 20 Week, 
 indications of its stopping. Therefore a per- Rep. 7.")4; Delamatyr v. Milwaukee etc. R. 
 son could recover for injuries received by Co., 24 Wis. 578; Evansville etc. R. Co. v. 
 being shaken off a car by a sudden move- Duncan, 28 lud. 441; Taber v. Delawai-e etc. 
 ment, while standing on the platform wait- R. Co., 71 N. Y. 489; Central R. Co. i'. Van 
 ing for it to stop. See also Chicago City R. Horn, 38 N. J. L. 133; Columbus etc. R. Co. 
 Co. v. Munf ord (Sup. Ct. 111. 1880), 21 Alb. L. v. Farrell, 31 Ind. 408. The decisions in 
 J. 214. Siner v. Great Western R. Co., L. R. 3 IZxch. 
 
 4 Toy w. London etc. R. Co., 18 C. B. (N. S.) 150; s. c. L. R. 4 Exch. 117, and Pabst v. 
 225. Baltimore etc. R. Co., 2 3IcArthur, 42, may 
 
 5 Robson V. North-Eastern R. Co., L. R. be regarded as quite out of line with author- 
 10 Q. B. 271 ; Bridges v. London etc. B. Co., ity, and inconsistent with later adjudications 
 L. R. 6 Q. B. 377; s. c. 40 L. J. (Q. B.) 188; L. on this subject. Ante, p. 229, § IS. 
 
 R. 7 H. L. 213; 43 L. J. (Q. li.) 151; 23 Week. « Ilarrold v. Great Western R. Co., 14 L. 
 
 Rep. 62; 30 L. T. (N. S.) 844; Whittaker v. T. (N. S.) 440; Lewis i\ London etc. R. Co., 
 
 Manchester etc. R. Co., L. R. 5 C. P. 464, note L. R. 9 Q. B. 66; 43 L. J. (Q. B.) 8; Evans- 
 
 (3) ; Petty v. Great Western R. Co., L. R. 5 ville etc. R. Co. v. Duncan, 28 Ind. 441.
 
 GETTING ON AND OFF AT DANGEROUS PLACE. 269 
 
 Duty of Carrier to provide Means of Egress. 
 
 If a railroad train is stopped at night merely for the purpose of allowing a 
 train which is expected from the opposite direction to pass by, without notice 
 given by the sei'vants of the company to passengers that they may leave the cars, 
 one who leaves the cars and walks into an open cattle-guard, and receives a per- 
 sonal injury, cannot maintain an action against the company to recover damages 
 therefor ; and it is immaterial that he was misinformed by some person not in 
 the employment of the company that he must go and see to having his baggage 
 passed at a custom-house, supposed to have been reached by the train, or that 
 the train was near a passenger-station, which was not the place of his destina- 
 tion.' 
 
 Wherever a railroad company is in the habit of receiving passengers, whether 
 at a station or some point outside, or if by the regular operation of trains it is 
 necessary to traverse portions of the premises outside of the station-house, pas- 
 sengers have a right to assume that such parts of the premises are in a safe 
 condition for such purpose, even on a dark night. ^ 
 
 When the railroad company have provided safe and convenient means for pas- 
 sengers to get on and off their trains, if the passenger uses a way of his own 
 choice, in preference to that provided by the company, he will be responsible for 
 accidents which happen in consequence.' 
 
 Injuries frequently happen to passengers by being run over by other trains 
 passing through stations, while taking or leaving their own trains. In cases of 
 this kind, it would seem that if the running arrangements of the road are such 
 that it is necessary to pass over a railroad track in order to take or leave a train, 
 the passenger may rightfully expect protection against the running of trains at 
 such a time, and may therefore properly relax that vigilance for his safety which 
 is ordinarily demanded of one coming upon a railroad track.* But if the presence 
 of the passenger on the track is not essential to his getting on and off the train, 
 and he has neglected safe and convenient means provided by the company for 
 this purpose, he is there at his peril.* 
 
 The Supreme Judicial Court of Massachusetts, which, in all cases of tort aris- 
 ing out of negligence, holds the plaintiff very strictly to the proof of exercise of 
 due care on his own part as a condition precedent to his right of recovery, has 
 held, in cases of injury to passengers, where there was a reasonable justification 
 for their being on the track, that they are nevertheless bound to exercise due 
 care in such position, and that it is a question for the jury whether they were 
 careless or not at the time of the injury. It was so held in Warren v. Fitchburg, 
 etc. Railroad Company,^ where the plaintiff bought a ticket at a station, and the 
 
 1 Frost V. Grand Trunk R. Co., 10 Allen, ^ Pennsylvania R. Co. v. Zebe, 33 Pa. St. 
 387. 318; s. c. 37 Pa. St. 420; Bancroft v. Boston 
 
 2 Hulbert V. New York etc. R. Co., 40 N. etc. R. Co., 97 Mass. 275; Gonzales v. New 
 Y. 145; McDonald i). Chicago etc. R. Co., York etc R. Co., 50 How. Pr. 126; Forsyth r. 
 ante, p. 93; Dillaye v. New York etc. R. Co., Boston etc. R. Co., 103 Mass. 510. But see 
 56 Barb. 30; Knight v. Portland etc. R. Co., Dublinetc. R. Co. v. Slattery, 3 App.Cas. 1155. 
 .56 Me. 234; Martin v. Great Northern R. Co., * Klein v. Jewett, 26 N. J. Eq. 474; Chi- 
 16 C. B. 179; Nicholson v. Lancashire etc. R. cago etc. R. Co. v. Wilson, 63 111. 167; Arm- 
 Co., ante, p. 85. Passengers are not, how- strong v. New York etc. R. Co., 66 Barb. 437. 
 ever. Justified in taking a course of their "Pennsylvania R. Co. v. Zebe, 33 Pa. St. 
 own across the company's premises, for the 318; s. c. 37 Pa. St. 420; Bancroft v. Boston 
 purpose of reaching the train sooner than etc. R. Co., 97 Mass. 275; Gonzales v. New 
 by the customary way. Burgess v. Great York etc. R. Co., 50 How. Pr. 126. 
 Western R. Co., 6 C. B. (N. S.) 923. « 8 Allen, 227.
 
 270 CONTKIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 station-agent said to him, "The train is coming, — we wUl cross over," and he 
 attempted to follow him, for the purpose of taking his seat in the train (which 
 meanwhile had arrived), and, in crossing a track for that purpose, was struck by 
 another train, coming from the other direction and partially behind him, which 
 he did not look for or see until too late to save himself .^ In Gaynor v. Old Col- 
 ony, etc. Bailroad Company^ the same court said: "No one can be said to be in 
 the exercise of due care who places himself upon a railroad track without the 
 assurance, from actual observation, that there is no approaching train. But the 
 degree of caution which he must exercise in crossing will be affected always by 
 the circumstances of the time and place. He has a right to rely to some extent 
 upon proper precautions and the usual signals of warning, to be given by an 
 engine or train passing a station where passengers are leaving another train upon 
 its fresh arrival."^ 
 
 Circumstances of paramount necessity, however, will justify a passenger in leav- 
 ing the train in a manner other than that provided by the company, — as, where 
 the station of the plaintiff was not announced, and the train stopped but a short 
 time, necessitating great haste on the part of the plaintiff in getting off the train 
 after she had ascertained that she had reached her destination, whereby she got 
 off upon the wrong side, and, coming upon a parallel track, was injured by an 
 express train which drove past at great speed.* 
 
 Although it is the duty of the railroad company to have its trains safely and 
 conveniently accessible to persons intending to take them, yet this will not justify 
 a passenger who finds a freight-train, with steam up and blocking the way, in 
 crawling through or under it without permission of or notice to any one in 
 charge of this train.' 
 
 § 5. Passenger laboring vmder a Disability. — It is consistent not only 
 with common humanity, but with the legal obligations of the carrier, that if a 
 passenger is known to be in any manner affected by a disability, physically or 
 mentally, whereby the hazards of travel are increased, a degree of attention 
 should be bestowed to his safety beyond that of an ordinary passenger, in pro- 
 portion to the liability to injury from the want of it.* But in order that the 
 
 1 See also Mayo v. Boston etc. R. Co., 104 said to be negligence in law, but that under 
 
 Mass. 137. ^ 100 Mass. 208, 213. all the circumstances her negligence was a 
 
 s To the same effect see Chaffee i'. Boston question for the jury. AUender v. Chicago 
 
 etc. R. Co., 104 Mass. 108; Wheelock v. Bos- etc. R. Co., 37 Iowa, 264. 
 
 ton etc. R. Co., 105 Mass. 203. « Sheridan v. Brooklyn City R. Co., 36 N. 
 
 « Keller v. New York etc. R. Co., 24 How. Y. 39; s. c. 34 How. Pr. 217; Giles v. Great 
 
 Pr. 172; Dickens v. New York etc. R. Co., 1 Western R. Co., 36 Upper Canada Q. B. 360, 
 
 Abb. App. Dec. 504. 369 ; Pittsburgh etc. R. Co. v. McClurg, 56 Pa. 
 
 ^ Chicago etc. R. Co. v. Coss, 73 111.394; St. 294; Columbus etc. R. Co. v. Powell, 40 
 Chicago etc. R. Co. v. Dewey, 26 111. 255. Ind. 37. But see New Orleans etc. R. Co. v. 
 Where a person about to take passage on a Statham, 42 Miss. 607, where certain state- 
 train, having first looked up and down the ments are made by the court which derive 
 track and seen no car in motion, but a loco- no support from authority in general, as for 
 motive standing far away, crawled between example: "All assistance that a conductor 
 two freight- cars which belonged to a train may extend to ladies without escorts, or 
 with no locomotive attached, and while in with children, or to persons who are sick, 
 such position was injured by cars being pro- and ask his assistance in getting on and off 
 pelled against the end of the train, in the trains, is purely a matter of courtesy, and 
 process uf making it up, it was held that the not at all incumbent upon him in the line of 
 conduct of the injured person could not be his public duty."
 
 PASSENGER UNDER DISABILITY. 271 
 
 Lunatics — Intoxicated Persons. 
 
 carrier may be invested with this duty, it is necessary that the condition and 
 wants of the passenger in this respect should be made known to him or his ser- 
 vants. ' 
 
 This is well illustrated by a frequently cited case. In Willetts v. Buffalo, etc. 
 Bailroad Company,'^ the facts were that a lunatic was travelling upon a train in 
 company with his father, who had procured tickets for both. The father got out 
 at a way-station to procure refi'eshments, leaving his son in the cars without 
 giving notice to any one of his condition. During the absence of the father, the 
 son changed his seat. After the train started, the father having not yet found 
 his son or given notice that he was missing, the conductor, in the absence of the 
 former, applied to the latter for his ticket. The lunatic handed the conductor 
 the card of a public-house. On being threatened with expulsion from the train 
 if he did not pay his fare, he produced another hotel-ticket ; whereupon he was 
 gently put off the train, after slight resistance, saying, as he left, that "Judge 
 Miller" had paid his fare, or would pay it. The strange conduct of the passen- 
 ger, and a wild stare by him as he stood on the ground, induced a person who 
 assisted the conductor in putting him off to inquire whether there was any thing 
 the matter with the man; to which the conductor replied that he was "one of 
 the stubborn kind." Subsequently to this occurrence, and in ignorance of it, 
 the father of the lunatic made inquiries of the conductor in regard to his son, 
 and ascertained that he had been put off the train. Every facility was afforded 
 the father, by the conductor of this and other trains, for finding him again ; but 
 the lunatic, having got upon the track, was run over and killed by another train, 
 several hours later, in the night-time, under circumstances which exonerated the 
 company from every imputation of negligence as to this occurrence. The court 
 held that no part of the conduct of the deceased furnished sufficient evidence of 
 insanity to put the conductor on his guard, and that thei'efore no recovery 
 could be had against the company by the personal representative. 
 
 The fact that a passenger is intoxicated does not absolve the carrier from the 
 duty of exercising the same care for his safety as for that of other passengers, 
 although this circumstance may be shown as indicating contributory negligence 
 in case of injury received by him.' Indeed, it is properly held that it is the duty 
 of the carrier's servants under such circumstances, when aware of the intoxica- 
 tion of the passenger, to give him that degree of attention which considerations 
 for his safety demand, beyond that ordinarily bestowed upon passengers.* 
 
 Whenever a passenger can remedy the derangement or loss of one faculty by a 
 more than ordinarily diligent use of another, it is his duty to do so. Thus, a 
 
 1 Willetts V. Buffalo etc. R. Co., 14 Barb- tributory negligence, see Wynn v. Allard, 5 
 
 585; Toledo etc. R. Co. v. Baddeley, 54 111. Watts & S. 524; Chicago etc. U. Co. v. Bell, 
 
 19; New Orleans etc. R. Co. v. Statham, 42 70 111. 102; Toledo etc. R. Co. v. Riley, 47 111. 
 
 Miss. 607. - 14 Barb. 585. 514 ; Baltimore etc. B. Co. v. Boteler, 38 Md. 
 
 < Milliman v. New York etc. R. Co., 6 568; Ilealy v. New York,3IIuii,708; Ditchett 
 Thomp. & C. 585; 8. c. 66 N. Y. 642; Maguire v. Spuyten Duyvil etc. R. Co., 5 Hun, 165; 
 V, Middlesex R. Co., 115 Mass. 239; Whalen Alger v. Lowell, 3 Allen, 402; Stuart v. Ma- 
 V. St. Louis etc. R. Co., 60 Mo. 323. chias Port, 48 Me. 477 ; Cramer v. Burlington, 
 
 < Giles «. Great Western R. Co., 36 Upper 42 Iowa, 315; Burns v. Elba, 32 Wis. 605; 
 Canada Q. B. 360; Haley v. Chicago etc. R. Thorp v. Brookfield, 36 Conn. ;?21 ; O'Hagan 
 Co.,Jl Iowa, 15, 23. Upon the general sub- v. Dillon, 10 Jones & Sp. 456; Robinson h. 
 ject of intoxication as an element of con- Pioche, 5 Cal. 460.
 
 272 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 
 
 Notes. 
 
 person very short-sighted is materially assisted in many situations by listening 
 very attentively ; therefore it cannot be urged as a circumstance excusing a pas- 
 senger in getting off a train upon a railroad track alongside, that by reason of 
 his short-sightedness he could not have seen an approaching train by vrhich he 
 was killed, even if he had looked up and down the track for this purpose (a pre- 
 caution which the law imperatively demands) . The passenger in such a situation 
 should either listen for the train, or, more properly yet, get out upon the plat- 
 form on the other side, designed for the reception of passengers. i 
 
 In case of negligent management of a railroad train, it will be no excuse for 
 the company that the impaired faculties of the passenger materially contributed 
 to the injuries received in consequence of its negligence.* 
 
 1 Gonzales v. New York etc. R. Co., 50 7 H. L. 213 (reversing «. c. L. B. 6 Q. r. 
 "low. Pr. 126. 377) ; Patten v. Chicago etc. R. Co., 32 Wis. 
 
 2 Bridges v. London etc. B. Co., L. B. 524.
 
 CHAPTEE YIL 
 
 APPLICATIONS OF THE DOCTRINE OF IlklPUTED NEGLI- 
 GENCE IN THE CARRIAGE OF PASSENGERS. 
 
 Leading Cases: 1. Thorogood v. Bryan. — The passenger upon the vehicle of 
 a common carrier chargeable with the negligence of such 
 carrier, as regards third persons. 
 2. Bennett v. New Jersey Bailroad and Transportation Com- 
 pany. — This doctrine denied. 
 Notes: § 1. Imputed negligence — Proper scope of the rule. 
 
 2. Thorogood v. Bryan doubted. 
 
 3. Thorogood v. Bryan not followed. 
 
 4. The principle of Thorogood v. Bryan subsequently reas- 
 
 serted. 
 6. American authority upon this subject. 
 
 6. Negligence of a stranger concurring with negligence of the 
 
 carrier, to injury of passenger. 
 
 7. Children and persons of unsound mind as passengers. 
 
 8. Other cases illustrative of the rule. 
 
 1. PASSENGER CHARGEABLE WITH THE CARRIER'S NEGLIGENCE AS 
 REGARDS THIRD PERSONS. 
 
 * 
 
 Thorogood v. Bryan.* 
 
 English Court of Common Pleas, 1849. 
 
 The Right Hon. Sir Thomas Wilde, Kt., Lord Chief Justice. 
 Sir Thomas Coltmax, Kt., 
 
 " William Henry Maule, Kt., 
 
 " Cresswell Cresswell, Kt., \ Justices. 
 
 " Edward Vaughan Williams, Kt., 
 
 *• Thomas Noon Talfourd, Kt., 
 
 A passen^rer upon the vehicle of a common carrier, who sustains an injury which is the 
 result of the concurrent negligence of those in charge of such vehicle and third per- 
 sons, is so identified with the former as to be chargeable with their negligence, in an 
 action against the latter, and therefore entitled only to recover damages from his 
 carrier. 
 
 • Reported, 8 C. B. 114, 120. The editor has not deemed it necessary to present the case of 
 Cattlin V. Hills, involving the same principle as this case, which was argued and reported in 
 connection with it, as that case was compromised upon the basis of the opinion in this case, 
 no opinion being delivered therein. For a statement of the facts in that case, see post, § 2. 
 
 18 (273)
 
 274 IMPUTED NEGLIGENCE. 
 
 Thorogood v. Bryan. 
 
 This was an action upon the case brought by the plai^itiff, Sarah 
 Thorogood, as administratrix of her late husband, Charles Abraham 
 Thorogood, under the statute 10 Vict., e. 93, to recover damages 
 against the defendant for negligently causing the intestate's death. 
 
 The declaration stated that Charles Abraham Thorogood, in his life- 
 time, and before the committing of the grievances thereinafter men 
 tioned, was lawfully passing along a certain public highway ; that the 
 defendant, at the time of the committing of the grievance, was pos- 
 sessed of a certain cai'rioge called an omnibus, and of two horses then 
 drawing the same along the said highwa}", which said carriage and horses 
 were under the care and direction of a certain servant of the defendant ; 
 yet that the defendant, after the passing of a certain act of Parliament, 
 made and passed, etc., intituled "'An act to compensate the families of 
 persons killed by accident," to wit, on, etc., by her said servant, so 
 carelessly drove and directed the said carriage and horses, that by 
 the negligence and improper conduct of the defendant, by her said 
 servant in that behalf, they ran against the said Charles Abraham Thor- 
 ogood, so then lawfully passing along the said highway, and knocked 
 him down and passed over him, and thereby greatly crushed and injured 
 him ; and by reason of the premises the said Charles Abraham Thoro- 
 good, within twelve calendar months next before the commencement of 
 the suit, to wit, on, etc., died, leaving him surviving the plaintiff, who, 
 at the time of his death, was his wife, and John, Sarah, Esther, and 
 Emma, his children, etc. 
 
 The defendant pleaded not guilty, wliereupon issue was joined. 
 
 The cause was tried before V. Williams, J., at the Sittings in Middle- 
 sex, after Trinity Term, 1848. The facts that appeared in evidence 
 were as follows: On the 3d of January, 1848, Charles Abraham Thoro- 
 good, the husband of the plaintiff (whose administratrix she was), was 
 a passenger in an omnibus belonging to one Barber, in which he was 
 proceeding toward Clapton about eight o'clock in the evening. The 
 defendant, Mrs. Bryan, was the proprietress of another omnibus running 
 on the same line of road. Both vehicles had started together, and fre- 
 quently passed each other as either stopped to take up or set down a 
 |)assenger. The deceased, wishing to alight, did not wait for the omni- 
 !)us to draw up at the curb, but got out whilst it was in motion, and far 
 enough from the path to allow another carriage to pass on the near side. 
 L'he defendant's omnibus coming up at the moment, the deceased was 
 unable to get out of the way, and was knocked down and run over, and 
 seven daj's afterwai'ds died of the injuries he so sustained. 
 
 On the part of the defendant it was submitted, upon the authority
 
 PASSENGER CHARGEABLE WITH CARRIER'S NEGLIGENCE. 275 
 
 English Court of Common Pleas. 
 
 of Butterfield v. Forres^ter ' and Bridge v. The Grand Junction Railway 
 Company,'^ that the plaintiff was not entitled to recover, inasmuch as 
 the evidence showed that the accident was at least in part occasioned 
 by the negligence of the driver of Barber's omnibus, in permitting a 
 l)assenger to alight without drawing up at the curb and whilst the vehi- 
 cle was in motion, and by want of care and caution on the part of the 
 deceased himself. 
 
 The learned judge told the jury, that, if they were of opinion that the 
 injuries sustained b}^ the deceased were purely the result of accident, 
 they must find for the defendant ; and he further told them, that, if they 
 were of opinion that want of care on the part of the driver of Barber's 
 omnibus in not drawing up to the curb to put the deceased down, or 
 any want of care on the part of the deceased himself, had been con- 
 ducive to the injury, in either of those cases — notwithstanding the 
 defendant (by her servant) had been guilty of negligence — their ver- 
 dict must be for the defendant. 
 
 The jury returned a verdict for the defendant. 
 
 Humphrey^ in Trinity Term, 1848, obtained a rule nisi for a new trial, 
 on the ground of misdirection. He submitted that the ruling of the 
 learned judge would necessarily lead to this absurd result: that a pas- 
 senger who is injured by a collision between two omnil)uses has no 
 remedy against the proprietor of either, if the drivers of both are guilty 
 of negligence or improper conduct. And he cited Lynch v. Nurdiii,^ 
 Pluckioell v. Wilson^'^ and Luxford v. Large.^ 
 
 Talfourd, Serjt., now showed cause. The direction of the learned 
 judge was perfectly correct. The true principle which governs these 
 cases is to be found in the statement of the cause of action in the 
 declaration, which, in substance, is, that the injury was the result solely 
 of negligence and improper conduct on the part of the defendant's ser- 
 vant. The question is, whether the injury of which the plaintiff 
 complains proceeded from negligence on the part of the defendant, or 
 from something over which the defendant had no control. Many cases 
 might be put, in which a part}', though himself in fault, might still be 
 entitled to compensation for damage sustained through another's negli- 
 gence. For instance, suppose a drunken man lying in a carriage-way, 
 and a carriage, recklessly driven along the road, passed over and injui'ed 
 him, — the inebriety of the plaintiff would be no defence to an action. 
 The true inquiry is, whether the injury complained of is fairly attribu- 
 
 1 11 East, 60. 8 1 Q. B. 29 ; s. c. 4 Per. & Dav. 672. 
 
 - 3 Mee. & VV. 244; ». c. sub nom. Armitage < 5 Car. & P. 375. 
 
 V. Grand Junction R. Co., 6 Dowl. P. C. 340. » 5 la. 421.
 
 276 IMPUTED NEGLIGENCE. 
 
 Thorogood v. Bryan. 
 
 tible to the wrongful act of the defendant. BuUerjiekl v. Forrester was 
 the first case in which this doctrine was discussed. It was there held 
 that one who is injured by an obstruction in the highway, against which 
 he fell, cannot maintain an action if it appear that he was riding witli 
 great violence and want of ordinary care, without which he might have 
 seen and avoided the obstruction. "A party," says Lord Ellekbor- 
 OUGH, "is not to cast himself upon an obstruction which has been made 
 by the fault of another, and avail himself of it, if he do not himself use 
 common and ordinary caution to be in the right." [V. Williams, J. — 
 The objection to the summing up applies to that part of it which relates 
 to the want of care and caution on the part of the driver of Barber's 
 omnibus. I acted upon the dictum of the Court of Exchequer in 
 Bridge v. The Grand Junction Raihvay Company. If that be correct, I 
 was right.] That was an action upon the case for the negligent man- 
 agement of a train of railway carriages, whereby it ran against another 
 train, in one of the carriages of which the plaintiff was, and injured 
 him. The defendants pleaded that the parties having the management 
 of the train in which the plaintiff was, managed it so negligentl}' and 
 improperly that, in part by their negligence, the defendant's train ran 
 against the other, and caused the injuries to the plaintiff. The court 
 held the plea bad, both in form and in substance. And Parke, B., 
 says: "The rule of law is laid down with perfect correctness in the 
 case of Butterjield v. Forrester, and that rule is, that, although there 
 may have been negligence on the part of the plaintiff, yet, unless he 
 might, by the exercise of ordinary care, have avoided the consequences 
 of the defendant's negligence, he is entitled to recover ; if by ordinary 
 care he might have avoided them, he is the author of his own wrong. 
 That is the only, way in which the rule as to the exercise of ordinary 
 care is applicable to questions of this kind." That case is followed 
 hy Davies v. Mann.^ There, the defendant negligently drove his horses 
 and wagon against and killed an ass, which had been left in the high- 
 way fettered in the fore feet, and thus unable to get out of the wa}' of 
 the wagon, which was going at a " smartish " pace along the road ; and 
 it was held that the jury were properly directed that, although it was an 
 illegal act on the part of the plaintiff so to put the animal on the high- 
 way, the plaintiff was entitled to recover. And Parke, B., said: 
 "This subject was fully considered by this court in Bridge v. The 
 Grand Juyiction Railway Company, where, as appears to me, the correct 
 rule is laid down concerning negligence, viz., that the negligence which 
 
 I 10 Mee. & W. 546.
 
 PASSENGER CHARGEABLE WITH CARRIER'S NEGLIGENCE. 277 
 
 English Court of Common Pleas. 
 
 is to preclude a plaintiff from recovering in an action oi this nature 
 must be such as that he could, by ordinary care, have avoided the con- 
 sequences of the defendant's negligence. In that case, there was a plea 
 imputing negligence on both sides: here, it is otherwise ; and the judge 
 simply told the jury that the mere fact of negligence on the part of the 
 plaintiff in leaving his donkey on the public highway was no answer to 
 the action, unless the donkey's being there was the immediate cause of 
 the injury ; and that, if they were of opinion that it was caused by the 
 fault of the defendant's servant in driving too fast, or, which is the 
 same thing, at a smartish pace, the mere fact of putting the ass upon 
 the road would not bar the plaintiff of his action. All that is perfectly 
 correct ; for, although the ass may have been wrongfully there, still the 
 defendant was bound to go along the road at such a pace as would be 
 likely to prevent mischief. Were this not so, a man might justify the 
 driving over goods left on a public highway, or even over a man lying 
 asleep there, or the purposely running against a carriage going on the 
 wrong side of the road." [Cresswell, J. — Must not the negligence 
 which is to exonerate the defendant be negligence of the plaintiffs or of 
 his agent ?] It is submitted not ; at all events, the driver of the omni- 
 bus in which the deceased was a passenger must be taken to be his 
 agent. [Cresswell, J. — Suppose two omnibuses are racing, and one 
 of them runs over a man who is crossing the road and has not time to 
 get out of the way, has not the injured party a remedy against the 
 proprietor of either omnibus?] No doubt he has. [Cresswell, J. — 
 It seems strange to say that A. shall not be responsible for his negli- 
 gence because B. has been negligent likewise, C. being the party 
 injured. The principle of Butterjield v. Forrester is, that one who 
 receives an injur}' from the negligent act of another, shall not have an 
 action if by the exercise of ordinary care he might have escaped the 
 injury.] It is not necessary in this case to contend for a proposition so 
 wide as that suggested. The point did not arise in Bridge v. Grand 
 Junction Rdilivay Comjoany. [Cresswell, J. — It could not; the plea 
 amounted to not guilty, or nothing.] 
 
 Humphrey (with whom was Cobbett), in support of the rule. — Bridge 
 v. The Grand Junction Railway Company does not apply. It was enough 
 there to decide that the plea was bad in point of form ; but the court 
 go on to say, unnecessaril}-, that it is also bad in substance. Adopting 
 the suggestion of Parke, B., in that case, the learned judge upon this 
 occasion told the jury, that if, in their opinion, the accident might have 
 been avoided by the exercise of ordinary care on tlie part of the de- 
 ceased, or of the driver of the omnil)US in which ho was, the defendiint
 
 278 IMPUTED NEGLIGENCE. 
 
 Thorogood v. Bryan. 
 
 was entitled to their verdict. [Cresswell, J. — It appears that the 
 deceased got out whilst the omnibus was moving; and, consequentl\% 
 he had not sufficient command of his legs to be able to get out of the 
 wa}' of the defendant's omnibus, the driver of which could not reason- 
 ably be expected to be prepared for such a state of things.] If the 
 fact were so, no ordinary care on Thorogood's part could have saved 
 him. [Cresswell, J. — What degree of caution could have enabled tlie 
 driver of Barber's omnibus to avoid the accident?] It is enough to 
 show that there might be a stale of things which makes the direction 
 wrong. We may assume that the deceased was in the right, and the 
 drivers of both omnibuses wrong. [Cresswell, J. — Wrong in what?] 
 In omnibus. It would be monstrous to say that the plaintiff is without 
 remedy against either party. Put the case of a passenger on board a 
 steamboat, silting in a place appropriated for passengers, and getting 
 his leg broken by another steamboat coming in collision with them, — 
 what remedy would he have against the proprietors of the boat he was 
 on board of? [V. Willtams, J. — A coachman is responsible to his 
 master for the due management of the carriage in which he is driven by 
 him. Suppose the master injured by the coachman's want of care, 
 though bj^ an accident which would not have happened but for the 
 want of proper care on the part of a third person, — would the coach- 
 man be liable ?] It is submitted that he would. The rule as laid down 
 in Butterjield v. Forrester, and followed in Bridge v. The Grand Junction 
 Railway Company and Davies v. Mann, is not so large as the summing 
 up in this case assumes. The negligence, to operate an excuse, must be 
 negligence in the particular thing which leads to the accident. 
 
 The court, before pronouncing judgment in this case, desired to hear 
 the argument of Cattlin v. Hills, a case involving very much the same 
 question. 
 
 Cur. adv. vult. 
 
 [Omitting the statement of facts in the case of Cattlin v. HMls, which 
 was compromised, no judgment being x-endered in it.] 
 
 CoLTMAN, J. — The case of Thorogood v. Bryan seems distinctly to 
 raise the question whether a passenger in an omnibus is to be considered 
 so far identified with the owner that the neghgence on the part of the 
 owner, or his servant, is to be considered neghgence of the passenger 
 himself. As I understand the law upon this subject, it is this: that a 
 party who sustains an injury from the careless or negligent driving of 
 another may maintain an action, unless he has himself been guilty of 
 such neghgence or want of due care as to have contributed or conduced 
 to the injury. In the present case, the negligence that is relied on as
 
 PASSENGER CHARGEABLE WITH CARRIER'S NEGLIGENCE. 279 
 
 English Court of Common Pleas. 
 
 an excuse is not the personal negligence of the party injured, but the 
 negligence of the driver of the omnibus in which he was a passenger. 
 But it appears to me, that, having trusted the party by selecting the par- 
 ticular conveyance, the plaintiff has so far identified himself with the 
 ownei- and her servants, that, if any injury results from their negligence, 
 he must be considered a party to it. In other words, thevpassenger is 
 so far identified with the carriage in which he is travelHng, that want of 
 care on the part of the driver will be a defence of the driver of the car- 
 riage which directly caused the injury. That being so, the summing up 
 in this case — which is in accordance with the opinion expressed by the 
 Court of Exchequer in Bridge v. The Grand Junction Railioay Company, 
 though not in terms with the decision of that case — was correct. I 
 therefore think the verdict should stand undisturbed. 
 
 Maule, J. — I agree with my brother Coltman in thinking that the 
 rule in Thorogood v. Bryan ought to be discharged. This is an action 
 brought to recover damages against an omnibus proprietor, for negli- 
 gently causing the death of the plaintiff's husband by knocking him 
 down and driving over him, as he had just alighted from another omni- 
 bus. My brother Williams, in leaving the case to the jury, told them, 
 that, if they should be of opinion that the occurrence was purely acci- 
 dental, or that the deceased, or the driver of the omnibus by whicli 
 he was carried, had by any negligence or want of care on their part 
 contributed to the accident, they must find for the defendant. The 
 jury having, upon that direction, found for the defendant, it must be 
 assumed that tliey found that there had been negligence on tlie part of 
 the driver of the omnibus in which he was a passenger. This case is an 
 important one, inasmuch as it is in some degree novel, though some 
 what similar in principle to Bridge v. The Grand Junction Raihuay 
 Company, where, in a case against a railway company for the negligent 
 management of a train, whereby it ran against another train, in which 
 the plaintiff was a passenger, and injured him, a plea that the persons 
 having the management of the train in which the plaintiff was, man- 
 aged it so negligently and improperly that, in part by their negligence, 
 the defendant's train did the mischief, was held bad. The Court of 
 Exchequer there seem to have thought (though it was not necessary to 
 decide it) that where there is negligence on both sides, the action cannot 
 be maintained. Although I at one time entertained a contrary impres- 
 Hion, upon further consideration I incline to think that for this pur- 
 [)ose the deceased must be considered as identified with the driver of 
 the omnibus in which he voluntarily l)ecame a passenger, and tliat the 
 negligence of the driver was tlie negligence of the deceased. If the
 
 iJSO IMPUTED NEGLIGENCE. 
 
 Thorogood v. Bryan. 
 
 deceased himself had been driving, the case would have been quite free 
 from doubt. So, there could have been no doubt had the driver been 
 employed to drive him, and no one else. On the part of the plaintiff it 
 is suggested that a passenger in a public conveyance has no control over 
 the driver. But I think that cannot with propriety be said. He selects 
 the conveyai^te. He enters into a contract with the owner, whom, b}' 
 his servant the driver, he employs to drive him. If he is dissatisfied 
 with the mode of conveyance, he is not obliged to avail himself of it. 
 According to the terms of his contract, he unquestionably has a remedy 
 for any negligence on the part of the person with whom he contracts for 
 the journey. It is somewhat remarkable that actions of this sort are 
 almost invariably brought against the rival carriage or vessel, which 
 is only to be accounted for by that party spirit which more or less 
 enters into every transaction of life. If there is negligence on the 
 part of those who have contracted to carry the passengers, those who 
 are injured have a clear and undoubted remedy against them. But it 
 seems strange to say, that, although the defendant would not, under 
 the circumstances, be liable to the owner of the other omnibus for any 
 damage done to his carriage, he still would be responsible for an injury 
 done to a passenger. The passenger is not without remedy. But, as 
 regards the present defendant, he is not altogether without fault. He 
 chose his own conve^'ance, and must take the consequences of any 
 default of the driver whom he thought fit to trust. For these reasons, 
 it seems to me that the direction of my brother Williams was quite cor- 
 rect, and that the rule should be discharged. 
 
 Cresswell, J. — I am of the same opinion. I must own I should 
 not have been sorry if the point could have been raised upon a bill 
 of exceptions. The subject is an important one, and ought to be defin- 
 itively set at rest. I incline to think that the opinion thrown out by the 
 Court of Exchequer in Bridge v. The Grand Junction Railway Com- 
 pany is the correct one. If the driver of the omnibus the deceased was 
 in had by his negligence or want of due care and skill contributed to 
 any injury from a collision, his master clearly could maintain no action ; 
 and I must confess I see no reason why a passenger who employs the 
 driver to convey him stands in any better position. For these reasons, 
 I think that the plaintiff in this case was not entitled to recover. 
 
 V. Williams, J. — I am of the same opinion. I think the passenger 
 must, for this purpose, be considered as identified with the person hav- 
 ing the management of the omnibus he was conveyed by. 
 
 Mule discharged.
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGLIGENCE. 281 
 
 Supreme Court of New Jersey. 
 
 2. THIS DOCTRINE DENIED. 
 
 Bennett v. New Jersey Railroad and Transportation Com- 
 pany.* 
 
 Supreme Court of New Jersey^ 1873. 
 
 Hon. M»RCER Beasley, Chief Justice. 
 
 " Joseph D. Bedle, 
 
 '* Vancleve Dalrimple, 
 
 ♦' George S. Woodhull,! 
 
 " David A. Depue, 
 
 " Bennet Van Syckle,! 
 
 " Edward W. Scudder,! 
 
 Judges 
 
 1. Tborog'ood v. Bryan denied. — The driver of a street car is not the agent of a passen- 
 
 ger therCon, so as to render such passenger chargeable with the negligence of such 
 driver. 
 
 2. Case in Judg'ment. — Where a passenger on a street car is injured by the carelessness 
 
 of the engineer of a railroad company in the management of a locomotive, it is no 
 defence that there was contributory negligence in the driver of the street car. 
 
 On rule to show cause, etc. Argued at February Term, 1873, before 
 Beasley, C. J., and Justices Bedle, Dalrijmple, and Depue. 
 
 Leon Abbett, for plaintiff ; J. W. Scudder, for defendants. 
 
 The opinion of the court was delivered by — 
 
 Beasley, C. J. — The cars of the Jersey City and Bergen Railroad 
 Company, in crossing the track of the defendants, the New Jersey 
 Railroad and Transportation Company, were struck by the locomotive 
 of the latter company. At the time of this occurrence the plaintiff 
 was a passenger in the horse-car, and was considerably injured by the 
 collision. The jury found the servants of the defendants in fault, and 
 gave the plaintiff $5,000 damages. The case stands before this court 
 on a motion for a new trial, founded on two grounds : first, for a mis- 
 direction in matter of law at the cix'cuit; and, second, because the 
 damages are excessive. 
 
 The question of law then presented is this: the defendants, at the 
 trial, contended that there was evidence tending to show neghgence in 
 the servants of the horse-car company, which negligence was, in part, 
 productive of the accident, and requested the judge who presided to 
 charge the jury that if this was so, the plaintiff was not entitled to 
 
 • Reported, 36 N. J. L. 225. t Not sitting in this case.
 
 282 IMPUTED NEGLIGENCE. 
 
 Bennett v. New Jersey Railroad and Transportation Company. 
 
 recover. The proposition claimed to be law is, that when a passenger 
 enters a public conveyance he in some sort becomes affected by the 
 negligence of the agents of those in charge of such conveyance, at 
 least to the extent of debarring him from suits against third parties for 
 injuries occasioned by the joint carelessness of such third parties and 
 that of the servants having the control of the vehicle in which he is 
 riding. 
 
 This position has for its support the case of Thorogood v. Bryant 
 The authority is in every respect in point. The suit was by the repre- 
 sentatives of a person who had been run over and killed. The deceased 
 was a passenger in an omnibus, and in getting out had been run over 
 by the omnibus of the defendant. The judge trying the cause chargefl 
 the jury, that, if any want of care on the part of the driver of the omni- 
 bus in which the deceased was a traveller had been conducive to the 
 injury, their verdict must be for the defendant. The ruling was 
 approved of by the court in banc. 
 
 This case stands, I think, in point of principle, alone in the line of 
 English decisions, and the grounds upon which it rests seem to me 
 inconsistent with familiar rules. The reason given for the judgment 
 is, that a passenger in the omnibus " must be considered as identified 
 with the driver of the omnibus in which he voluntarily" becomes a pas- 
 senger, and that the negligence of the driver is the negligence of the 
 passenger. But I have entirely failed to perceive how it is that the pas- 
 senger in a public conveyance becomes identified, in any legal sense, 
 with the driver of such conveyance. Such identification could result 
 only in one way : that is, by considering such driver the servant of the 
 passenger. I can see no ground upon which such a relationship is to 
 be founded. In a practical point of view, it certainly does not exist. 
 The passenger has no control over the driver or agent in charge of the 
 vehicle. And it is this right to control the conduct of the agent, which 
 is the foundation of the doctrine that the master is to be affected by the 
 acts of his servant. To hold that the conductor of a street car or of a 
 railroad train is the agent of the numerous passengers who may chance 
 to be in it, would be a pure fiction. In reality there is no such agency, 
 and if we impute it, and correctly apply legal principles, the passenger, 
 on the occurrence of an accident from the carelessness of the person in 
 charge of the vehicle in which he is being conveyed, would be without 
 any remedy. It is obvious, in a suit against the proprietor of the car in 
 
 I 8 0. B. 116; ». c. ante, p. 273.
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGLIGENCE. 283 
 
 Supreme Court of New Jersey. 
 
 which he was a passenger, there could be no recover}' if the driver or 
 conductor of such car is to be regarded as the servant of the passenger. 
 And so, on the same ground, each passenger would be liable to every 
 person injured by the carelessness of such driver or conductor ; because, 
 if the negligence of such agent is to be attributed to the passenger for 
 one purpose, it would be entirely arbitrary to say that he is not to be 
 affected by it for other purposes. And yet it is to be presumed that no 
 court would go this length, and impose on each person being carried by 
 a railroad train responsibility for the misconduct of the engineer or con- 
 ductor of such train. The doctrine of the English case appears to con- 
 vert the driver of the omnibus into the servant of the passenger for the 
 single purpose of preventing the passenger from bringing suit against a 
 third party, whose negligence has cooperated with that of the driver in 
 the production of the injury. I am compelled to dissent from such a 
 proposition. Under the circumstances in question, the passenger is a 
 perfectly innocent party, having no control over either of the wrong- 
 doers ; and I can see no reason why, according to the usual rule, an 
 action will not lie in his behalf against either or both of the employers 
 of such wrong-doers. 
 
 Nor do I think that in the English courts it is considered that the case 
 of Thorogood v. Bryan has settled the rule of law. 
 
 The question involved in it was decided on a rule to show cause, a 
 . circumstance which was regretted by one of the judges, who said that 
 the subject was an important one and ought to be definitively set at 
 rest. The case itself was disparagingly criticised in the fourth edition 
 of Smith's Leading Cases ;^ and this criticism has, on two occasions at 
 least, been referred to by the English courts with marked respect.^ From 
 these considerations, this case does not bear the weight which a deliber- 
 ate decision of the Court of King's Bench ordinarily carries with it. 
 The doctrine of the case has, however, been adopted in Pennsylvania,^ 
 but has been repudiated in New York."* 
 
 The result is, that in the present case the jury was rightly instructed 
 that the carelessness of the driver of the street car in which the plaintiff 
 was a passenger could not affect the suit, or bar the plaintiff's right to 
 recover for the negligence of the defendant. 
 
 Bule discharged. 
 
 1 Yoi i^ p 220. ' Lockhart v. Lichtenthaler, 46 Pa. St. 152. 
 
 ' Tuff V. Warman, 2 C. B. (W. 8.) 760; ♦ Chapman v. New Haven R. Co., 19 N. Y. 
 
 Waite V. North-Eastern R. Co., El. Bl. ft 841; Webster v. Hudson etc. E. Co., 38 N. Y. 
 
 El. 728. 260.
 
 2^4 IMPUTED NEGLIGENCE. 
 
 Notes. 
 
 NOTES. 
 
 § 1. Imputed Negligence — Proper Scope of the Rule. — The reasonableness 
 of the rule of imputed negligence will hardly be questioned where the person to 
 whom the negligence of another is imputed has control, management, or 
 advisory power over the conduct of such negligent person ; ^ or where, from the 
 necessity of the case, such negligent person is by lawful authority vested with 
 the control and direction of the movements of the person to whom his negli- 
 gence is imputed ; ^ or where the plaintiff sues in a representative capacity for 
 injuries causing the death of his negligent intestate ; ' or where the plaintiff 
 sues for the loss of services, etc., of the negligent and injured person;* or 
 where the plaintiff has intrusted his chattel to another, whose negligence con- 
 curs with that of the defendant in producing an injury to it. To illustrate : The 
 OAvner of a horse, who lends him without hire, cannot recover for his death in 
 consequence of an unsafe roadway, if the negligence of the borrower contrib- 
 uted to the accident.^ Neither can the owner of a wagon recover for an injury 
 done to his vehicle by colliding with another, if his driver's want of ordinary 
 care contributed to produce the collision.^ So, where the plaintiff, pursuant to 
 a contract, furnished a person a team to be used in farming the lands of the 
 former for the joint benefit of the parties, and such person, while so using the 
 team, carelessly left it unfastened while he voluntarily engaged in a personal 
 encounter with a third person, near to the horses, by which circumstance the 
 team became frightened and ran off, and one was killed, it was held that the 
 want of care on the part of the custodian of the animals, being a proximate 
 cause of the injury, would prevent a recovery therefor in an action by the owner 
 against such third person.' 
 
 § 2. Thorogood v. Bryan doubted. — It is not perceived that this rule can, 
 with any degi'ee of justice or reason, be extended beyond the limits just indicated. 
 It seems scarcely to admit of doubt that the application which the rule received 
 in the case of Thorogood v. Bryan^ is open to criticism and to positive objection. 
 It was in this case that the rule was first announced (though previously hinted at ') 
 in unqualified form, that a passenger is so far identified with the carrier and his 
 servants, that if any injury results from their negligence, he must be considered 
 a party to it, and accordingly disentitled to recover. It is seldom that a rule of 
 law is declared, so palpably fraught with injustice and so easily demonstrable to 
 be fallacious, or arbitrary and anomalous. The strong common-sense of at 
 
 « Chapman v. New Haven R. Co., 19 N. Y. s Forks Township v. King, 84 Pa. St. 230. 
 
 341,344. 8 Mabley v. Kittleberger, 37 Mich. 360. 
 
 2 Waite V. North-Eastern R. Co., El. Bl. See also Smith v. Smith, 2 Pick. 621. 
 
 & El. 719; 2 Thomp. on Neg., p. 11S2, § 32 ' Puteibaugh v. Reasor, 8 Ohio St. 484. 
 
 et ieq. See also Stiles v. Geesey, 71 Pa. St. 439. 
 
 s 2 Thomp. on Neg., p. 1279, § 80. .8 Ante, p. 273. 
 
 < Cleveland etc. R. Co. v. Terry, 8 Ohio ^ Bridge v. Grand Junction R. Co.,3Mee. 
 
 St. 570; Bellefontaine etc. R. Co. v. Snyder> & W. 244. See also Vanderplank v. Miller, 
 
 24 Ohio St. 670. Moo. & M. 169.
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGLIGENCE. 285 
 
 Thorogood v. Bryan not followed. 
 
 least one English judge has more than once led him to suggest that the case 
 ought not to be regarded as binding authority. In the course of the argument 
 of Tuff V. Warman in the Court of Common Pleas, when this case was cited 
 by counsel, Williams, J., interrupted the argument by saying, "That case has 
 been made the subject of some damaging remarks in the last edition of Smith's 
 Leading Cases." ^ Again, in the argument of Waite v. North-Eastern Eaihcay 
 Company in the Exchequer Chamber, under similar circumstances he made sub- 
 stantially the same observation.^ 
 
 Dr. LusHiXGTOX, Judge of the High Court of Admiralty, in the course of an 
 opinion,^ thus remarked upon this case: "The case of Thorogood v. Bryan, it is 
 said, has laid down a rule to the contrary. With due respect to the judges who 
 decided that case, I do not consider that it is necessary for me to dissect the 
 judgment, but I decline to be bound by it, because it is a single case; because I 
 know, upon inquii-y, that it has been doubted by high authority; because it 
 appears to me not reconcilable with other principles laid down at common law ; 
 and lastly, because it is directly against Say v. Le Neve,* and the ordinary prac- 
 tice of the Court of Admiralty." 
 
 § 3. Thorogood v. Bryan not followed, — In addition to the foregoing expres- 
 sions of disapproval of Thorogood v. Bryan, there are two other English cases, 
 determined the year following, which show that the principle of this case had 
 not then taken a very firm root in the judicial mind. In Rigby v. Hewitt,^ it 
 appeared that the plaintiff was a passenger on the outside of an omnibus, which, 
 just before the accident, had started from the same place as the defendant's om- 
 nibus, and at the same time. The drivers were competing for passengers, each 
 endeavoring to secure the lead ; and while the omnibuses were going at great 
 speed, in trying to avoid a cart which was in the way, the wheel of the defend- 
 ant's omnibus came in contact with a projecting step of the omnibus on which the 
 plaintiff was riding, which caused the latter to swing towards the curbstone. 
 The speed with which it was going rendered it impossible for the driver to pull 
 up. The seat on which the plaintiff sat struck against a lamp-post, and he was 
 
 1 2 C. B. (N. s.) 750. The remarks to which soning of the court in that case is consistent 
 the learned judge made reference are found with those of Kigby v. Hewitt, 5 Exch. 240, 
 in a note to Ashby v. White, in the sixth and Greenland v. Chaplin, 5 Exch. 243, or 
 American edition of Smith's Leading Oases, with the series of decisions from Quarman 
 in Vol. I., at p. 430. They are as follows: v. Burnett, 6 Mee. & W. 599, to Reedie v. 
 "If two drunken stage-coachmen were to London etc. R. Co., 4 Exch. 244, and Dalycll 
 drive their respective carriages against each v. Tyrer, 28 L. J. (Q. B.) 52. Why in this par- 
 other, and injure the passengers, each ticular case both wrong-doers should not be 
 would have to bear the injury to his own considered liable to a person free from all 
 carringc, no doubt; but it seems highly un- blame, not answerable for the acts of either 
 reasonable that each set of passengers of them, and whom they have both injured, 
 should, by a fiction, be identified with the is a question which seems to deserve more 
 coachman who drove them so, as to be consideration tiian it received in Thorogood 
 restricted for remedy to actions against v. Bryan." 
 their own driver or his employer. This, = El. Bl. & El. 728. 
 nevertheless, ajipears to be the result of the ' The Milan, 1 Lush. 388, 403. 
 decision in Thorogood v. Bryan, 8 C. B. 115; * 2 Shaw's Sc. App. 405. 
 but it may be questioned whether the rea- ' 5 Exch. 240.
 
 286 IMPUTED NKGHGEJNCE. 
 
 Notes. 
 
 thrown off. The learned judge told the jury that the plaintiff was not disentitled 
 to recover morelj^ because the omnibus on which he sat was driven at a furious 
 rate, and that if the jury thought that the collision took place from the negli- 
 gence of the driver of the defendant's omnibus, and that the other omnibus was 
 not in fault in not endeavoring to avoid the accident,^ then the defendant was 
 liable. The jury having found for the plaintiff, the counsel for the defendant 
 moved for a new trial, on the ground of misdirection. The Court of Exchequer 
 decided that there was no fault to be found with the direction of the trial judge. 
 Again, in Greenland v. Chaplin^ the rule was not applied. In this case, the 
 plaintiff was a passenger on a steamboat called the Sons of the Thames. The 
 defendant's steamboat, called the Bachelor, struck the flrst-named vessel on the 
 bow, where its anchor was carried, which being thereby dislodged, fell upon and 
 broke the plaintiff's leg.^ Pollock, C. B., told the jury, that, if they were of 
 opinion that the collision was owing to the bad navigation of the Bachelor, they 
 should find a verdict for the plaintiff ; but if they thought that there was any 
 negligence, either in the stowage of the anchor or in the plaintiff putting himself 
 in the place where he was on board the Sons of the Thames, they should find 
 for the defendant. The jury having found a verdict for the plaintiff, the counsel 
 for the defendant obtained a rule nisi to set aside the verdict, as against the evi- 
 dence, no objection being taken to the mode in which the question was left to 
 the jury. In the Court of Exchequer, Pollock, C. B., expressed the judgment 
 of all the judges in saying that the verdict of the jury was satisfactory. A por- 
 tion of his opinion is quite noteworthy. He said: " My brother Shee contended 
 that the accident in part arose from the negligent stowage of the anchor, and 
 from the plaintiff being in a part of the vessel where he ought not to have been. 
 But the jury negatived both these propositions, and found a verdict for the plain- 
 tiff, notwithstanding I told them, no doubt incorrectly, that, if they thought either 
 that there was negligence in the stowage of the anchor, or that the accident 
 
 1 This language we have italicized to show tion. The plaintiff was a passenger upon a 
 how slight was the regard paid to the strict vessel called the Sons of the Thames. The 
 rule of Thorogood v. Bryan. Here are two defendant's vessel, called the Sapphire, 
 persons driving madly through a frequented rubbed against the Sons of the Thames, and 
 thoroughfare, in a race for patronage. Such coming in contact with the anchor of the 
 conduct, it cannot be doubted, constitutes, latter, which projected a little over her lar- 
 not merely negligence, but that in a most board bow, knocked it down upon the plain- 
 reprehensible degree. Therefore, had the tiff's leg, and so crushed it as to render 
 trial judge intended to follow the rule of amputation necessary. There was contra- 
 Thorogood v. Bryan, the plaintiff would dictory evidence as to whether or not the 
 have been nonsuited from this circum- anchor on board the Sons of the Thames 
 stance, and the defendant's liability would was properly stowed, the defendants con- 
 not have been made to depend upon the tending that it ought to have been lashed, 
 mere contingency whether the omnibus in which case the accident could not have 
 upon which the plaintiff rode was in fault happened. A verdict having been rendered 
 in not endeavoring to avoid the accident. for the plaintiff in this case, a motion was 
 
 2 5 Exch. 243. made for a new trial, and cause was shown; 
 
 3 The striking similarity between the facts but the judgment of the court upon the case 
 of this case and those of Cattlin v. Hills (a was never delivered, as the parties agreed to 
 case heard at the same time with Thorogood a compromise immediately upon the deci- 
 V. Bryan, because it involved very much the sion of the case of Thorogood v. Bryan. See 
 eame question) ought not to escape atteu- a C. B. 133.
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGEIGE^CE. 287 
 Thorogood v. Bryan reasserted. 
 
 arose from the plaintiff being in a part of tlie vessel wliere he ought not to have 
 been, they ought to find for the defendant.' This language, it is unnecessary to 
 remark, shows a thorough abandonment of the principle of Thorogood v. Bryan. 
 
 § 4. The Principle of Thorogood v. Bryan subsequently reasserted. — Not- 
 withstanding the disparagement with which Thorogood v. Bryan has been 
 often treated, the effect of at least two comparatively recent decisions must be 
 such as to bolster up its tottering authority, and render it at the present time an 
 accurate expression of the law of England upon this subject. In a case decided 
 as late as the year 1875, ^ the facts were these : The plaintiff, an employee of a 
 railroad company, was travelling in one of its trains over the defendants' road. 
 The train ran past an adverse danger-signal, and into some trucks that were being 
 switched on the line by the defendants' servants. The plaintiff was hurt in the 
 collision. On the trial, the jui*y found that there was negligence, both on the 
 part of the servants in switching the trucks, and of the engineer of the train in 
 which the plaintiff was riding in running past the danger-signal. The court 
 held that it was impossible to distinguish this case from Thorogood v. Bryan ; 
 and said Bramwell, B., " I am prepared to decide this case upon the authority 
 of Thorogood v. Bryan, which has never been overruled." He thought, however, 
 that there was another principle upon which the case ought to be decided ad- 
 versely to the plaintiff. The plaintiff, although not engaged in the management 
 of the train upon which he was riding, was nevertheless a servant of the com- 
 pany owning the train, the negligence of whose servants had contributed to the 
 occurrence of the accident, and therefore could not maintain any action against 
 the company in whose employ he was. For this reason the learned baron seems 
 to have considered the plaintiff to have been peculiarly ^^ identified'^ with those 
 engaged in the operation of the train. 
 
 Such a consideration as this appears, indeed, to have been the basis of a deci- 
 sion by this same court, less than a year previous,^ in a case where it appeared 
 that the defendant was guilty of negligence in failing to restrain his pigs from 
 roaming at large, in consequence of which neglect, concurring with the failui'e 
 of a railroad company to comply with the statutory regulation requiring it to 
 keep its track securely fenced, the animals got upon the line of the railroad. At 
 the moment they appeared upon the track, the plaintiff, a track-repairer in the 
 service of the railway company, was passing upon a hand-car, in company with 
 fellow-workmen returning from work upon the line. The car, running over tAVO 
 of the pigs, was upset, and the plaintiff's leg was broken. In an action by the 
 plaintiff against the owner of the animals, after a verdict for the plaintiff, a rule 
 to enter a nonsuit was made absolute in the Court of Exchequer. The ground 
 of the decision is apparent from the language of Bramwell, B. : * " What might 
 happen if one of the public were injured in the use of the railway, which is a 
 public highway, I will not say. The defendant might perhaps say, ' I was not 
 bound to fence ; ' but then the plaintiff might reply, ' There was an opening 
 through which you knew the pigs might get out of your field upon the line ; you 
 
 1 6 Exch. 247. ' Child v. Ilearn, L. R. 9 Exch. 176. 
 
 2 Armstrong v. Lancashire etc. R. Co., L. < L. R. 9 Exch. 182. 
 R. 10 Exch. 47; « c. 44 L. J. (Exch.) 89.
 
 288 IMPUTED NEGLIGENCE. 
 
 Notes. 
 
 allowed them to be in the field, and I, using the road innocently, suffered injury 
 through their escaping on to the line.' But however that might be, here the 
 plaintiff was a servant of the owner of property which was unfenced through 
 the owner's default. * * * The servant can be in no better position than 
 the master, when he is using the master's property for the master's purposes. 
 Therefore, without saying any thing as to the decision in Thorogood v. Bryan, it 
 is sufficient to say that the defendant's pigs escaped through the negligence of 
 the plaintiff's employer, and that, having met with the accident through his 
 employer's negligence, the plaintiff can maintain no action against the defend- 
 ant." Pollock, B., concurred in this reasoning; but Pigott, B., was of opinion 
 that no negligence had been shown on the part of the defendant, and for this 
 reason the plaintiff ought not to recover. 
 
 The foregoing remarks indicate that this case was decided upon a considera- 
 tion both novel and arbitrary. Can it be said that the servant is identified with 
 his master or fellow-servants for the purposes of a case of this kind ? It would 
 seem not. It is, indeed, a familiar legal fiction that the law implies a contract 
 on the part of a servant, when he enters into service, that he will assume the 
 ordinary risks which are incident to such employment, among which is the risk 
 of suffering injury from the negligence of his fellow-servants or collahorateurs .^ 
 As a corporate body like a railroad corporation can act only through its agents 
 or servants, the act of each servant, within the scope of his employment, may be 
 said, with reference to his fellow-servants, to be, in contemplation of law, the 
 act of such fellow-servants. To this extent the servants of a common employer 
 may be said to be identified with each other. But this fiction of the law should 
 be applied only to the exigencies which called it into existence. It is a rule of 
 necessity and policy, adopted solely for the protection of the master from liability 
 for injuries which flow from causes equally obvious to master and servant, and 
 for which the master and the injured servant are equally blameless. Now, taking 
 the case of an injury to a servant of a railway company, happening by reason of 
 the concurrent negligence of such railway company, or its servants, and the tor- 
 tious act or omission of a stranger, how can that stranger be heard to urge in 
 his defence a rule of public policy which exists only for other and limited pur- 
 poses? If it is by force of an implied contract that a servant is identified with 
 his fellow-servants, persons not privy to such contract can claim no rights under 
 it. Indeed, it would seem to be more consonant with justice to hold, that, be- 
 cause by a rule of public policy the servant is deprived of his action against his 
 employer in such cases, there should remain to him his action against the con- 
 current wrong-doer. 
 
 § 5. American Authority upon this Subject. — The deference which, in gen- 
 eral, is justly paid to the adjudications of courts of England, has frequently 
 resulted in the propagation, in this country, of the principles of some unfortunate 
 decisions. Thorogood v. Bryan is an example of this. In Pennsylvania, the prin- 
 ciple of this case seems to have been adopted in all its length and breadth.'* The 
 learned judge who delivered the opinion in the case, being satisfied that the pas- 
 senger is to be regarded as identified with his carrier, but dissatisfied with the 
 
 » 2 Thomp. on Neg., p. 969. « Lockhart v. Lichtenthaler, 46 Pa. St. 151.
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGLIGENCE. 289 
 
 American Authorities. 
 
 reasoning of the Judges in that case, proceeded to say: " I would say the reason 
 for it is, that it better accords with the policy of the law to hold the carrier alone 
 responsible in such circumstances, as an incentive to care and diligence. As the 
 la-K fixes responsibility upon a different principle in the case of the carrier, as 
 already noticed, from that of a party who does not stand in that relation to the 
 party injured, the very philosophy of the requirement of greater care is that he 
 shall be answerable for omitting any duty which the law has defined as his rule 
 and guide, and will not permit him to escape by imputing negligence of a less 
 culpable character to others, but sufiicient to render them liable for the conse- 
 quences of his own. It would be altogether more just to hold liable him who 
 has engaged to observe the highest degree of diligence and care, and has been 
 compensated for so doing, rather than him upon whom no such obligation rests, 
 and wiio, not being compensated for the observance of such a degree of care, acts 
 only OM the duty to observe ordinary care, and may not be aware even of the 
 presence or a party who might be injured. This rule, it cannot be doubted, will 
 be more JIKely to increase diligence than its opposite, which would enable a neg- 
 ligent and ratthless party to escape the consequences of his want of care by 
 swearing It on to another, which he would assuredly do if the temptation and 
 opportunity offered. As this view accords best with the policy of the law, it is 
 proof of the existence of the rule itself." ^ 
 
 It is not perceived that the reasons for such a principle as established in Thoro- 
 good V. Bryan are less unsatisfactorily stated in the foregoing remarks than in 
 the original case, because, — (1.) It may be positively denied that the adoption of 
 the rule whicn we contend against is " an incentive to care and diligence." It is 
 inconceivable that a railway company would lessen that high degree of care put 
 upon it by the law, if, for example, in the case of a collision of trains at the 
 intersection of tracks of different corpoi'ations, either company would be respon- 
 sible to injured passengers by reason of the concurrent negligence of the train- 
 men of each company. The reasoning of the learned judge, therefore, seems to 
 be purely speculative upon this point. (2.) There can be no hardship in holding 
 all persons, under all circumstances, to the exercise of care with reference to 
 others, accordhig to such circumstances; nevertheless, the learned judge seems 
 to intimate that, in the case of an accident which is the result of the concurrent 
 negligence of two parties, — one acting with reference to the injured person 
 according to the standard of ordinary care, and the other under an obligation to 
 use the highest degree of diligence, — although each has failed to observe the 
 degree of care required of him by law, the injured person is relegated for his 
 remedy to one of them only. 
 
 It is gratifying to see the fallacy of the rule we are discussing, so ably exposed 
 as in the opinion of Beasley, C. J., in Bennett v. J^ew Jersey Bailroad and 
 Transportation Company: ' *< It is obvious, in a suit against the proprietor of the 
 car in which he was a passenger, there could be no recovery if the driver or 
 conductor of such car is to be regarded as the servant of the passenger. And 
 so, on the same ground, each passenger would be liable to every person injured 
 by the carelessness of such driver or conductor; because, if the negligence of 
 such agent is to be attributed to the passenger for one purpose, it would be 
 
 » Per Thompson, J., 46 Pa. St. 164. • Ante, p. 281. 
 
 19
 
 ^yU I3IPUTED NEGLIGENCE. 
 
 Notes. 
 
 entirely arbitrary to say that he is not to be affected by it for other pur- 
 poses.'" 
 
 The language of Johnson, J., of the Court of Appeals of New York, is 
 equally explicit against this rule: "It is entirely plain that the plaintiff had 
 no control, no management, even no advisory power, over the train ou which 
 he was riding. Even as to selection, he had only the choice of going by that 
 railroad or none. To attribute to him, therefore, the negligence of the agents 
 of the company, and thus bar him of a right of recovery, is not applying any 
 existing exception to the general rule of law, but is framing a new exception 
 which does not in fact rest upon the reason of the original exception, and is 
 based on fiction, and inconsistent with justice."' Decisions have been subse- 
 quently rendered in this State in accordance with this exposition of the law.^ 
 
 Such is the rule in Kentucky. A recovery of damages was allowed against a 
 turnpike company for negligence in keeping their gate, resulting in an injury to 
 a passenger on a stage-coach, although the driver of the coach was also negli- 
 gent in not having his lamps lighted. Stites, J., expressed the rule concisely: 
 "Where an injury is occasioned by the negligence of two persons, the fault of 
 one is no excuse for that of the other. Both, in that case, are liable to the party 
 injured." * This rule has been reafiirmed in a later case in the same court, where 
 the injury resulted from a collision between a street car and a railroad train, 
 caused by the reckless driving of the former and the negligent management of 
 the latter, in consequence of which the plaintiff 's intestate, a passenger upon 
 the street car, met his death.* 
 
 § 6. Negligence ol a Stranger concurring with Negligence of the Carrier, 
 to Injury ol Passenger. — There can be no question as to the carrier's respon- 
 sibility to a passenger for an accident which is the result of his negligence con- 
 curring with that of a stranger. To illustrate : A stage-coach, by the negligence 
 of the driver, is precipitated into a dry canal ; the lock-keeper thereafter negli- 
 gently opens the gates of the canal, and drowns a passenger. Under Lord 
 Campbell's Act,^ the Irish Court of Queen's Bench held that the death of a 
 passenger under such circumstances, in the language of the act, was ^^ caused " 
 by the negligence of the carrier.' In this case, O'Biuen, J., said: "The precipi- 
 tation of the omnibus into the lock was certainly one cause, and (as it may be 
 
 136N. J. L. 227. ants, and a stage-coach upon which the 
 
 - Chapman v. New Haven E. Co., 19 N. Y. plaintiff was riding, whereby the plaintiff 
 
 ?A1, 344. was injured. The justice at the circuit had 
 
 3 Colegrove V. New York etc. R. Co.,20N. charged that the plaintiff was responsible 
 
 Y. 492; «. c. 6 Duer, 382; Webster v. Hudson for the negligence of the driver of the stage 
 
 etc. R. Co., 38 N. Y. 260. In the case ol in which she was riding, and the jury had 
 
 IlroTn V. New York etc. R. Co., 32 N. Y. found that there was no negligence on the 
 
 597 (s. c. 31 Barb. 385). the question as to part of the driver. The question of im- 
 
 whether the passenger is to be regarded as puted negligence, therefore, was not before 
 
 identified with the carrier was somewhat the court. 
 
 discussed, but the language in that case ^ Danville etc. Turnpike Co. v. Stewart, 
 
 must be regarded as entirely obiter, and was 2 Mete. (Ky.) 119, 122. 
 
 60 regarded in a later case in this court. '■> Louisville etc R. Co. v. Case's Admin - 
 
 Webster v. Hudson etc. R. Co., supra. It istrator, 9 Bush, 728,735. « 9 & 10 Vict., c. 93. 
 
 was a case of a collision at a highway- cross- ' Byrne v. Wilson, 15 Irish C. L. (N. s.) 
 
 ing, between a railroad train of the defend- 332, 342.
 
 PASSKNGEK NOT CHAKGKABLE WITH CARKIER's NEGLIGENCE. 291 
 
 Concurring Negligence of Stranger — Children. 
 
 said) the primary cause, of her death, inasmuch as she would not have been 
 drowned but for such precipitation. It is true that the subsequent letting of 
 the water into the lock was the other and more proximate cause of her death, 
 and that she would not have lost her life but for such subsequent act, which 
 was not the necessary consequence of the previous precipitation by the negli- 
 gence of defendant's servants. But, in my opinion, defendant is not relieved 
 from liability for his primary neglect by showing that but for such subsequent 
 act the death would not have ensued." 
 
 In another case, it appeared that the driver of a street car negligently permitted 
 the plaintiff, a child five years old, and another child eleven years old, to ride 
 upon the front platform of a street car, and that the elder child, who was not 
 in charge of the plaintiff, but her companion merely, attempted to put her off 
 while the car was in motion, and the plaintiff was injured.<^ The court held 
 that the negligence of the elder child was no defence to an action against the 
 street-car company for the negligence of the driver in permitting the children 
 to ride in such an exposed position.' In a New York case under the statute 
 giving a right of action for injuries resulting in death, it appeared that the 
 deceased, a boy nine years of age, was compelled by the conductor of a 
 street car to stand upon a crowded platform. From this position he was thrown 
 off the car by the hasty and careless departure of another passenger, and 
 received injuries which caused his death. The court held that the servant of 
 the defendants having put the deceased in a dangerous place, they were not 
 relieved from the consequences of their default by the fact that the negligence 
 of one of their passengers directly contributed to the injury.'^ 
 
 Another case presenting a combination of the negligence of several parties 
 further illustrates the principle under discussion. The driver of a load of hay 
 recklessly endeavored to drive it from the highway-crossing, upon and along the 
 railway track, to certain private premises. This track was used by two other 
 companies in the operation of their trains, besides the company owning it. Dur- 
 ing the progress of the wagon, the wheels became wedged in between the rails 
 and the planking, and were held fast. The defendants' train, upon which the 
 plaintiff was a passenger, having been detained by this circumstance, a flagman 
 was sent up the track to stop other trains. There was evidence that this pre- 
 caution was not adopted as soon as the situation of things became evident. The 
 train of another company came rapidly around a curve at this point, and ran into 
 the defendants' train, thereby causing the injury to the plaintiff. There was 
 evidence also that the conductor and engineer of this colliding train were negli- 
 gent in its operation. Under these circumstances, the defendants were held liable 
 to the plaintiff for the injuries suffered, Colt, J., saying: " It is no answer to an 
 action by a passenger against a carrier, that the negligence or trespass of a third 
 party contributed to the injury."* 
 
 § 7. Children and Persons of Unsound Mind as Passengers. — There would 
 seem to be no doubt that when a child is so young that by reason of its imma- 
 
 i Pittsburgh etc. R. Co. v. Cakhvell, 74 Pa. ■'' Eaton «. Boston etc. R. Co., 11 Allen, 500, 
 
 bt. 421. See also East Saginaw City R. Co. 505. See also Spooner v. Brooklyn City R. 
 
 V. Bohn, 2" Mich. 503. Co., 54 N. Y. 230; Ryland v. Peters, 1 Phila. 
 
 2 Sheridan v. Brooklyn etc. R.R., 36N.Y. 39. 264.
 
 292 IMPUTED NEGLIGENCE. 
 
 Notes. 
 
 tiirity and incapacity to guard itself against danger it is to be denominated non 
 stnjuns,^ or even older than tMs,^ if the parent or some duly authorized person 
 has it in charge, the negligence of such custodian in caring for the child will be 
 a complete defence to an action by the child for an injury which is the result of 
 such negligence concurring with the negligence of the cari-ier. 
 
 The leading case upon this subject is that of Waite v. North-Eastern Railroad 
 Company,'^ the facts of which case were, that the plaintiff, a child five years old, 
 was in charge of its grandmother, who procured tickets for both at the defend- 
 ants' station with the intention of taking the train at that place. The pair, in 
 crossing the track for the purpose of reaching a platform on the side of the 
 station opposite the ticket-office, were run down by a train, under circumstances 
 (as a jury found) of concurrent negligence on the part of the grandmother and 
 the servants of fhe defendant. The grandmother was killed, and the plaintiff 
 suffered personal injuries for which the suit was brought. In the Court of 
 Queen's Bench, Lord Campbell, C. J., held that the infant was so identified 
 with the grandmother that the action could not be maintained. This view was 
 sustained in the Court of Exchequer Chamber. Crowder, J., there said:* 
 "The case is the same as if the child had been in the mother's arms. There is 
 an identification, such that the negligence of the grandmother deprives the child 
 of the right of action. Now, the finding of the jury would clearly have pre- 
 vented the gi-andmother from recovering: it therefore has the same effect in 
 respect of an action by the child. It would be monstrous and absurd if there 
 could be a distinction." Cockburn, C. J., said: "I put the case on this 
 ground: that when a child of such tender and imbecile age is brought to a 
 railway station, or to any convej^ance, for the purpose of being conveyed, and is 
 wholly unable to take care of itself, the contract of conveyance is on the implied 
 condition that the child is to be conveyed subject to due and proper care on the 
 part of the person having it in charge." 
 
 More favorable to the plaintiff is the rule laid down by the Supreme Court of 
 Illinois in a case of this kind, viz. : The negligence of a parent or guardian hav- 
 ing in charge a child of tender years will not excuse a carrier by rail from using 
 all the means in its power to prevent injury to the child; yet, if the negligence 
 of the former is the proximate cause of the injury to the child, by unnecessarily 
 and imprudently exposing it to danger, the carrier cannot be held responsible, 
 unless it is sho^vn to have omitted duties the discharge of which would have 
 averted the injury.^ 
 
 The negligence of which a parent has been guilty in caring for his child under 
 these circumstances, would seem to be properly imputable to such parent as 
 personal representative of the child, in an action for a statutory penalty for its 
 death, where such negligence concurring with the negligence of the carrier or 
 his servants has produced this result. It was so adjudged in a recent case by 
 the Supreme Court of Pennsylvania. « In this case, the plaintiff's evidence 
 developed the fact that her son, for whose death the action was brought, was 
 
 1 As to when a child is non sui juris, see « El. Bl. & El. 719, 723. 
 2 Thomp. on Neg., p. 1180. •» El. Bl. & El. 735. 
 
 2 HoUy V. Bo-ston Gas Co., 8 Gray, 123; 6 Ohio etc. R. Co. v. Stratton, 78111. 88. 
 Stillson V. Hannibal etc. R. Co., 67 Mo. 671; « Smith v. Hestouville etc. R. Co., 10 Cent. 
 «. c. 7 Cent. L. J. 107. L. J. 272. (Decided February, 1880.)
 
 PASSENGER NOT CHARGEABLE WITH CARRIER'S NEGLIGENCE. 293 
 
 Concurring Negligence of Stranger — Cliilclren. 
 
 less than seven years of age. He, with other boys, was in the habit of pro- 
 curing water from a spring, and getting upon the platforms of street cars 
 belonging to the defendants, and furnishing the drivers, conductors, and pas- 
 sengers with water. For this service he had been accustomed to receive 
 various small gratuities. He had never been warned by the company's ser- 
 vants to keep off the cars. The plaintiff knew that her son was thus in the 
 habit of going to the cars with water. The cup and pitcher vised by him for 
 this purpose were taken by him with her consent. On the fatal occasion, the 
 deceased jumped upon the front platform of a car which was not provided 
 with a fender, and gave a drink to the driver. No one saw the accident which 
 ensued, or could explain the cause of it; but two or three minutes later, 
 the car having continued moving in the meantime, the child was seen on the 
 street, between the front and hind wheels, lying on his back, having been run 
 over by the front wheel. The child survived his injuries less than two days. 
 The conduct of the defendant's servants in thus permitting and encouraging 
 the deceased to ride upon the cars was undoubtfedly grossly negligent,' and a 
 recovery must have been allowed had the child been maimed instead of killed, 
 and he the plaintiff in the case instead of his parent.'' In this case it will be 
 seen that the personal representative of the deceased and the mother of the 
 child, whose negligence concurred in causing its death, were one and the same 
 person. The counsel for the plaintiff, however, ingeniously argued that they 
 were to be regarded as separate and distinct persons ; that the object of the act 
 giving a right of action for death from a wrongful act was to substitute the per- 
 sonal representative of the deceased for him.^ The deceased was of an age too 
 young to be denominated sui juris, and was therefore incapable of negligence ; * 
 and it was argued that, as the only contributory negligence involved in the case 
 was that of the deceased, a recovery ought to be allowed. The metaphysical 
 distinction, however, thus sought to be drawn was not established to the satis- 
 faction of the court. In the language of a note to this case, where the report is 
 fouud,^ " it would seem that the court very properly refused to recognize any 
 distinction between Elizabeth J. Smith, mother of the child killed, whose reck- 
 less disregard for its safety was instrumental in causing its death, and Elizabeth 
 J. Smith, personal representative of the unfortunate lad, to whom the fruits of 
 this action would have accrued in case a recovery of damages had been per 
 mitted." ® The same conclusion was reached in a similar case in New York, by a 
 nisi prius court, but upon other grounds.' 
 
 In Willetts v. Buffalo, etc. Bailroad Company,^ which is a leading case upon 
 this subject, a lunatic was travelling upon a railroad train, in company with his 
 
 1 Wilton V. Middlesex R. Co., 107 Mass. « Citing Bellefontaine etc. R. Co. v. Sny- 
 108; Pittsburgh etc. R. Co. «. Caldwell, 74 Pa. der, 34 Ohio St. 670; Pennsylvania R. Co. v. 
 St. 421; Day v. Brooklyn R. Co., 12 Hun, 43.'). Zebe, 33 Pa. St. 318; s. c. 37 P.a. St. 420; Bir- 
 
 2 Pennsylvania R. Co. v. Kelly, 31 Pa. St. minghain v. Dorer, 3 Brewst. C9; Isabel v. 
 372; Ranch v. Lloyd, 31 Pa. St. 358; Smith v. Hannibal etc. R. Co., 60 Mo. 475; Walters v. 
 O'Connor, 48 Pa. St. 218; Glassey v. Heston- Chicago etc. R. Co., 41 Iowa, 71; O'Flaherly 
 ville etc. R. Co., 57 Pa. St. 172; Kay v. Penn- v. Union R. Co., 45 Mo. 70; Koons v. St. Louis 
 srlvania R. Co., 65 Pa. St. 2C9; Phila. etc. R. etc. 11. Co., 65 Mo. 592; Daley v. Norwich etc. 
 Cv V. Long, 75 Pa. St. 257. R. Co., 26 Conn, rm, .5'J8; IJ.altimore etc. R. 
 
 3 See 2 Bright. Purd. Dig. 1093. Co. v. The State, 30 Md. 47. 
 
 * 2 Thomp. on Neg., p. 1181. ' Fleming v. Brooklyn City R. Co., 1 Abb. 
 
 5 10 Cent. L. .J. 274. N. C. 433. » 14 Barb. 585.
 
 294 IMPUTED NEGLIGENCE. 
 
 Notes. 
 
 father, who had paid the fare of both, through, and retained the tickets. The 
 father got out at a stopping-place to procure refreshments, leaving his son in the 
 cars witliout giving notice to any one of his condition; and while absent, the 
 train started. On regaining the cars, the father did not And his son where he 
 had left him, the latter having changed his seat. The conductor, during this 
 absence, applied to the lunatic for his ticket, not knowing him to be insane or 
 that his fare had been paid. The lunatic, being unable to deliver a ticket or 
 make explanations, was ejected from the train. His conduct during this time, 
 though strange, was not such as to inform the train-men of his mental condition. 
 Subsequently, while wandering along the track in the night-time, he was run 
 over and killed by another train, under circumstances which showed no negli- 
 gence on the part of the managers of this train. In an action under the New 
 York statute ^ authorizing an action to recover damages by the personal repre- 
 sentative for the death of a person by the wrongful act, neglect, or default of 
 another, it was held that the negligence of the parent must be attributed to the 
 deceased; that this negligence was such that the deceased could not have main- 
 tained an action if he had been injured instead of killed; therefore no action 
 could be maintained by his personal representative. 
 
 § 8. Other Cases illustrative of the Rxile. — Aclass of cases is brought together 
 under this head, not because they belong within the scope of this book, for they 
 do not arise out of any contract of carriage, express or implied, but because they 
 illustrate the rule under discussion in other relations. Friends are riding together 
 in a private conveyance, or paterfamilias is taking his family out for a drive : in 
 case of an injury resulting from the concurrent negligence of the driver of the 
 vehicle, and others outside of the vehicle, what shall be the rule as to its occu- 
 pants? Are they to be regarded as " identified " with the driver of their convey- 
 ance? In such cases there would seem to be a proper reason for sa)'ing that tht; 
 passenger, having trusted the parties owning or driving the vehicle, by choosing 
 that particular conveyance, has so far identilied himself with such persons that if 
 any injury results from their negligence he must be considered a party to it. 
 "One enters a public conveyance, in some sort, of moral necessity. One gen- 
 erally enters a private conveyance of free choice, voluntarily trusting to its 
 sufficiency and safety." ^ Authority, however, is not uniform upon this point. 
 The language of one of the judges of the Court of Exchequer Chamber would 
 seem' to indicate that it is proper to hold that there is an identification of the 
 driver with the person carried under such circumstances, ^ and, in view of the 
 rule declared in Thorogood v. Bryan, an English court would probably so decide 
 such a case. In several of the States this point has been thus adjudicated.* 
 The contrary, however, is held by the Court of Appeals of New York.* 
 
 1 Laws N. T. 1847, p. 575. 6 Eobinson v. New York etc. R. Co., 66 N. 
 
 2 Per Ryan, C. J., in Prideaux v. Mineral Y. 11; Metcalf v. Baker, 2 Jones &Sp. 10; s. c. 
 Point, 43 Wis. 513, 528; s. c. 6 Cent. L. J. 11 Abb. Pr. (V. S.) 431; 52 N. Y. 649; Knapp v. 
 430. Dagg, 18 How. Pr. 165. Contra, Beck v. East 
 
 2 Williams, J., in Waite v. North-Eastern River Ferry Co., 6 Robt. 87, per Robertson, 
 
 R. Co., El. Bl. & El. 734. C. J., on the authorily of Browu r. Xew 
 
 * Houfe V. Fulton, 29 Wis. 296; Prideaux York etc. R. Co., 32 N. Y. GOl, a case which 
 
 V. Mineral Point, supra; Payne v. Chicago has since been overruled by the Court of 
 
 etc. R. Co., 39 Iowa, 523 ; Lake Shore etc. R. Appeals upon this point. See Webster v. 
 
 Co. V. Miller, 25 Mich. 274. Hudson etc. R. Co., 38 N. Y. 260; ante, § 5.
 
 CHAPTER YIII. 
 
 POLICE DUTIES OF THE CARRIER. 
 
 Leadikg Case: 1. Pittsburgh, Fort Wayne, and Chicago Bailway Company v. 
 Hinds. — Duty of the conductor of a railway train to 
 protect passengers from the assaults of fellow-passen- 
 gers. 
 Notes: § 1. Carrier's authority and duty in this particular. 
 
 2. Intoxicated, disorderly, and dangerous passengers. 
 
 3. Use of profane language, and other impi-oprieties. 
 
 4. Failure to execute proper police regulations — Consequen- 
 
 tial injury to passenger. 
 
 DUTY OF THE CONDUCTOR OF A RAn.WAY TRAIN TO PROTECT PAS- 
 SENGERS FROM THE ASSAULTS OF FELLOW-PASSENGERS. 
 
 Pittsburgh, Fort Wayne, and Chicago Eailway Company 
 
 V. Hinds.* 
 
 Supreme Court of Pennsylvania, 1866. 
 
 Hon. George W. Woodward, Chief Justice. 
 " James Thompson, 
 •' William Strong, 
 " John M. Read, 
 " Daniel Agnew, 
 
 Judges. 
 
 1. Reciprocal Duties of Carrier and Passenger. —The carrier is under an obligation 
 
 to protect tlie passenger by the enforcement of proper police regulations. The pas- 
 senger is under a reciprocal obligation to subordinate himself to such regulations. 
 
 2. Not bound to provide apainst Injury at all Events. —Railroad companies are, 
 
 however, under no obligation to furnish their trains with a standing police-force sufli- 
 cient for the emergencies of occasions of extraordinary danger to passengers, which 
 could not have been foreseen. 
 
 3. Powers and Duties of Conductor of Railroad Train on Occasions of Danger. — 
 
 It is the duty, however, of the conductor upon such an occasion to exhaust every 
 means in his i)ower to furtiier the safety of passengers: to stop the train, call together 
 all the servants of the company, and such passengers as are willing to lend a helping 
 hand, and make a determined effort to quell a disturbance which threatens the safety 
 of passengers in general. 
 
 * Reported, 53 Pa. St. 612. 
 
 (295)
 
 296 POLICE DUTIES OF THE CARRIER. 
 
 Pittsburgh, Fort Waj^ne, and Chicago Railway Company v. HincLs. 
 
 Ekror to the Court of Common Pleas of Allegheny County. 
 
 This action was brought December 5, 1865, by Parker Hinds ancf 
 Martha Jane, his wife, against the Pittsburgh, Fort Wayne, and Chi- 
 cago Railway Company, for injury to her whilst riding on the defend- 
 ants' train. 
 
 The declaration contained two counts, both averring, in forms slightly 
 variant, negligence on the part of the defendants and their officers in 
 charge of the train, resulting in the dislocation of the plaintiff's arm;, 
 but not setting out the manner in which it was done. 
 
 The injury occurred under the following circumstances: An agricul- 
 tural fair was in progress near the town of Beaver, about the middle of 
 October, 1865. On one of the days of the fair, Mrs. Hinds was a pas- 
 senger on the defendants' train, in the ladies' car, which was the hind- 
 most in the train. As the train approached the Beaver station, a large 
 crowd of boisterous, drunken men and women were seen approaching 
 the station, and as soon as the train stopped, noisy and disorderly 
 drunken men forced themselves into the ladies' car. The evidence made 
 it pretty clear that it was impracticable for the conductor to keep them 
 off the train. One of the intruders, who was amongst the most boister- 
 ous, and was uttering loud threats against some one, jumped on the 
 rear platform as the car started. Soon after the car moved off, a fight 
 was commenced in this car by the last intruder. In the course of the 
 fight, some one was tlirown upon Mrs. Hinds with such violence that 
 her arm was greatly injured and she laid by from her ordinary duties. 
 The evidence was conflicting as to the efforts made by the conductor to 
 quell the fight, — some of the witnesses testifying that he could have 
 got amongst the combatants ; others, that the crowd was so dense that 
 he could not enter the car at all, and could do no more than stand at 
 the door and call out for peace, and tell the passengers to throw the 
 rioters from the car. The car was stopped two or three times between 
 Beaver and the next station; but at each time went on after two or 
 three minutes or less, without any thing special being done to stop the 
 fight or eject the rioters. All, or most of them, got out at the next 
 station. 
 
 On the trial, the plaintiff offered evidence to show "when, where, and 
 how the plaintiff was injured." The defendant objected "to evidence 
 being received under the pleadings, except such as tends to establish 
 an injury to the plaintiff resulting from some accident to the uain." 
 
 The objection was overruled, and an exception taken. Tl.cre were 
 also points submitted by the plaintiff which the opinion of the Supreme 
 Court makes it unnecessary to specify.
 
 ASSAULTS OF OTHER PASSENGERS. 297 
 
 Supreme Court of Pennsylvania. 
 
 The court (Stowe, A. J.) said to the jury that the plaintiff claimed 
 to recover, — 
 
 " 1. Because the evidence shows that the conductor did not do his 
 duty at Beaver Station, by allowing improper persons to get upon the 
 cars. 
 
 "2. Because he allowed more persons than was proper under the cir- 
 cumstances to get on the train and to remain upon it. 
 
 "3. That he did not do what he could and ought to have done to put 
 a stop to the fighting upon the train, which resulted in the plaintiff's 
 injury." 
 
 After discussing the law as to the first two propositions, and sub- 
 mitting them as questions of fact, he said as to the third : — 
 
 "The evidence shows that there was a fight going on in the cars; 
 that the conductor was notified, and that he did not interfere to prevent 
 it. We instruct you, as a principle of law, that the conductor of a train 
 is bound to attempt to put a stop to a fight in the cars, if he can do so 
 without apparently involving great personal danger to himself ; and if 
 no attempt is made, and no sufl3cient excuse be shown for not making 
 an effort to do so, and, in the melee, passengers not participating, but 
 quietly occupying their seats, are injured, the railway company employ- 
 ing such conductor is liable in damages. 
 
 "In such case, the law casts the burden of proof upon the defendant 
 to prove that an effort commensurate with the contingency was made, 
 or to show such facts as will induce a jury to believe that it would have 
 been fruitless, or accompanied with actual or apparent great personal 
 danger. 
 
 "Has, then, the conductor shown you such facts as in your opinion 
 excuse him from entering the car and using his authority to stop the 
 fight, under the circumstances as estabhshed by the testimony? 
 
 "If he could not get into the car by reason of the crowd, he has. If 
 the facts satisfy you that he could have got in by any reasonable possi- 
 bility, it was his duty to go, and to use every proper means to stop the 
 affray; and to say that he might have failed to stop it, will not do in 
 such cases, because he was bound to make the attempt. The law does 
 not hold him to perform impossibilities, but it does hold him to a strict 
 performance of his duty, or to show a reasonable excuse for its non- 
 performance. 
 
 *'If all is done that reasonable men would say was proper and right 
 under the circumstances, that is all that is required, but less will not 
 sufllce." 
 
 There was a verdict for the plaintiff for $2,250.
 
 298 POLICE DUTIES OF THE CARRIER. 
 
 Pittsburgh, Fort Wayne, and Chicago Railway Company v. Hinds. 
 
 The errors assigned were, the admission of the evidence, and the 
 charge of the court in submitting the case to the jury, as stated in the 
 three propositions. 
 
 J. H. Hampton, for plaintiff in error ; T. M. Marshall, for defend- 
 ant in error. 
 
 The opinion of the court was delivered by — 
 
 Woodward, C. J. — The action is for an injury sustained by the 
 plaintiff 's wife whilst she was a passenger in the cars of the defendants ; 
 and what is peculiar in the case is the fact that the injury was not occa- 
 sioned by defective machinery or cars or road, or by any thing that 
 pertained properly to their business as transporters, but was caused by 
 the fighting of passengers among themselves. Drunken and quarrel- 
 some men intruded into the ladies' car in great numbers whilst the train 
 stopped at Beaver Station, and in the disgraceful fight which ensued 
 among them the plaintiff 's arm was broken, and for this the railroad 
 company is sued. Had the suit been against the riotous men who did 
 the mischief, the right of recovery would have been undoubted ; for it 
 is not more the duty of railroad companies to transport their passengers 
 safely than it is the duty of passengers to behave in a quiet and orderly 
 manner. This is a duty which passengers owe both to the company 
 and to fellow-passengers, and when one is injured by neglect of this 
 duty, the wrong-doer should respond in damages. But in such a case is 
 the company liable? 
 
 There is no such privity between the company and the disorderly 
 passenger as to make them liable on the principle of respondeat superior. 
 The onl}' ground on which they can be charged is a violation of the 
 contract they made with the injured party. They undertook to carry 
 the plaintiff safely, and so negligently performed this contract that she 
 was injured. This is the ground of her action; it can rest upon no 
 other. The negligence of the company, or of their oflScers in charge of 
 the train, is the gist of the action, and so it is laid in the declaration. 
 And this question of negligence was submitted to the jury in a manner 
 of which the company have no reason to complain. The only question 
 for us as a court of error, therefore, is whether the case was, upon thu 
 whole, one that ought to have been submitted. The manner of the sub- 
 mission having been unexceptionable, was there error in the fact of 
 submission? 
 
 The learned judge reduced the case to three propositions. He said 
 the plaintiff claims to recover, — 
 
 "1. Because the evidence shows that the conductor did not do his 
 duty at Beaver Station, by allowing improper persons to get on the cars.
 
 ASSAULTS OF OTHER PASSENGERS. 299 
 
 Supreme Court of Pennsylvania. 
 
 "2. Because he allowed more persons than was proper, under the 
 circumstances, to get on the train and to remain upon it. 
 
 " 3. That he did not do what he could and ought to have done to put 
 a stop to the fighting upon the train, which resulted in the plaintiff's 
 injury." 
 
 As to the first of the above propositions the judge referred the evi- 
 dence to the jury, especially with a view to the question whether the 
 disorderly character of the men at Beaver Station had fallen under the 
 conductor's observation so as to induce a reasonable man to apprehend 
 danger to the safety of the passengers. 
 
 The evidence on this point was conflicting, but it must be assumed 
 that the verdict has estabhshed the conclusion that the conductor knew 
 that drunken men were getting into the cars. Let it be granted also, as 
 a conclusion of law, that a conductor is culpably negligent who admits 
 drunken and quarrelsome men into a passenger-car. What then? 
 
 The case shows that an agricultural fair was in progress in the 
 vicinity of Beaver Station ; that an excited crowd assembled at the 
 station, rushed upon the cars in such numbers as to def}' the resisting 
 power, at the disposal of the conductor, and that the man who com- 
 menced the fight sprang upon the platform of the hindmost car after 
 the}' were in motion. 
 
 Of what consequence, then, was the fact that the conductor knew 
 these were improper passengers? It is not the case of a voluntary 
 reception of such passengers. If it were, there would be great force 
 in the point; for more improper conduct could scarcely be imagined 
 in the conductor of a train than voluntarily to receive and introduce 
 among quiet passengers, and particularly ladies, a mob of drunken row- 
 dies. But the case is that of a mob rushing with such violence and in 
 such numbers upon the cars as to overwhelm the conductor as well as 
 the passengers. 
 
 It is not the duty of railroad companies to furnish their trains with a 
 police force adequate to such emergencies. They are bound to furnish 
 men enough for the ordinary demands of transportation, but they are 
 not bound to anticipate or provide for such an unusual occurrence as 
 that under consideration. 
 
 Wlien passengers purchase their tickets and take their seats, they 
 know that the train is furnished with the proper hands for the conduct 
 of the train, but not with a police force sufficient to quell mobs by the 
 wayside. No such element enters into the implied contract. It is one 
 of the incidental risks which all who travel must take upon themselves,
 
 300 POLICE DUTIES OF THE CARRIER. 
 
 Pittsburgh, Fort Wayne, and Chicago Eailway Company v. Hinds. 
 
 and it is not reasonable that a passenger should throw it upon the trans- 
 porter. 
 
 These observations are equally applicable to the second proposition. 
 The conductor did not "allow" improper numbers, no more than im- 
 proper characters, to get upon the cars. He says he took no fare from 
 them, and in no manner recognized them as passengers. To allow 
 undue numbers to enter a car is a great wrong, almost as great as 
 knowingly to introduce persons of improper character, and in a suit- 
 able case we would not hesitate to chastise the praetice severely. But 
 this is not a case in which the conductor had any volition whatever in 
 respect either of numbers or characters. He was simply overmastered, 
 and the only ground upon which the plaintiff could charge negligence 
 upon the company would be in not furnishing the conductor with a 
 counter-force sufficient to repel the intruders. This was not the ground 
 assumed by the plaintiff, and it would scarcely have been maintainable 
 had it been assumed. 
 
 Taking the case as it is presented in the evidence, we think it was error 
 for the court to submit the cause to the jury on these two grounds. 
 But upon the third ground we think the cause was properly submitted. 
 
 If the conductor did not do all he could to stop the figlitin^, 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, and, if properly used, they 
 are generally sufficient to preserve order within the cars and to expel 
 disturbers of the peace. His official character and position are a power. 
 Then, he may stop the train and call to his assistance the engineer, the 
 fireman, all the brakemen, and such passengers as are willing to lend a 
 helping hand ; and it must be a very formidable mob indeed, more 
 formidable than we have reason to believe had obtruded into these cai's, 
 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 scene of conflict. 
 To keep his train in motion, and busy himself with collecting fares in 
 forward cars whilst a general fight was raging in the rearmost car, where 
 the lady passengers had been placed, was to fall far short of his duty. 
 Nor did his exhortation to the passengers to throw the fighters out, 
 come up to the demands of the hour. He should have led the way, and 
 no doubt passengers and hands would have followed his lead. 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.
 
 IN GENERAL. 301 
 
 Notes. 
 
 Such are the impressions which this novel case has made upon our 
 minds. We think there was error in submitting the case upon the first 
 two propositions, but none in submitting it on the third, and if the 
 record showed that the jury decided it upon this latter ground, the 
 judgment could be affirmed. But, inasmuch as the error we find upon 
 the record may have infected the verdict, the judgment must be 
 reversed, and a 
 
 Venire facias de novo awarded. 
 
 NOTES. 
 
 § 1. Carrier's Authority and Duty in this Particular. — For the reason that 
 the carrier owes to the passenger the exercise of the utmost diligence for his 
 comfort and safety while the relation of carrier and passenger subsists, the 
 former has the authority to institute and execute proper police regulations for 
 the protection of the latter. The subordination of the passenger to reasonable 
 regulations of this character is a reciprocal duty. The violation of such regula- 
 tions by a passenger justifies his summary expulsion from the carrier's vehicle 
 or premises,' or forcible separation from the other passengers.^ The authority 
 of the carrier in this respect is correlative with his duty. In a case before the 
 Supreme Court of Mississippi,^ this matter is well considered by Chalmers, J., 
 who concludes as follows: "Powers aud duties are usually reciprocal, and may 
 be said to be uniformly so when the power is of a public, official character, con- 
 ferred for the benefit of others. The failure or refusal of the official to exercise 
 such a power in a proper case, when called upon by those for whose protection 
 he has been invested with it, amounts to negligence, or to wilful misconduct, as 
 the circumstances of the case may indicate, * * * A failure to discharge this 
 duty stands, to some extent, upon the same footing as the omission to perform 
 any other official duty, and, upon the maxim respondeat superior, renders the cor- 
 poration liable." 
 
 Of course, a considerable degree of caution is necessary in the execution of 
 this power. The carrier will be responsible for the act of his servant in expel- 
 ling a passenger from his vehicle under a mistake of fact or of judgment as to 
 the misconduct of the latter.* Upon familiar principles, no more force can be 
 used than is adequate for the purpose of expulsion.^ Thus, in Seymour v. Green- 
 
 > Vinton V. Middlesex R. Co., ante, p. 6; Iowa, 562; Chicago etc. R. Co. v. Williams, 
 
 Chicago etc. R. Co. v. Griffin, 68 111. 499; 55 111.185,188. 
 
 Pittsburgh etc. K. Co. v. Van Houten, 48 Ind. » New Orleans #tc. R. Co. v. Burke, 53 
 
 90; Pittsburgh etc. R. Co. «. Vallelej-; 32 Miss. 200; ». c. 4 Cent. L. J. 539. 
 
 Ohio St., 345; s. c. 7 Reporter, 406; 6 Cent. '* Higgins v. Watervliet Turnpike Co., 46 
 
 L. J. 277. N. Y. 23. 
 
 « Marquette v. Chicago etc. R. Co., 33 ^ The State r. Ross, 26 N. J. L. 224; Mur- 
 phy V. Union R. Co., 118 Mass. 228.
 
 302 POLICE DUTIES OF THE CARRIER. 
 
 Notes. 
 
 loood,^ the Court of Exchequer Chamber held that the carrier was responsible 
 for an injury caused by the needlessly violent expulsion from an omnibus of a 
 person who was drunk, had refused to pay his fare, and had assaulted the guard. 
 The time, place, and circumstances, also the condition of the passenger, will be 
 elements for the jury in deciding whether the expulsion was effected in a reason- 
 able manner, so as not to inflict wanton or unnecessary injury upon the offending 
 passenger, nor needlessly to place him in circumstances of peril at the time of 
 and after his expulsion.^ 
 
 § 2. Intoxicated, disorderly, and dangerous Passengers. — If the conduct of 
 the passenger is such as to excite reasonable apprehensions that his presence 
 will result in injury or annoyance to other passengers, it is the right and duty of 
 the conductor to expel him, without waiting for any overt act of violence.^ 
 Gamblers and monte-men, whose purpose in travelling upon a train is to ply 
 their vocations, may be excluded therefrom. But if a ticket has been sold to 
 such a person, and the company desires to rescind the contract for transporta- 
 tion, and prevents him from getting on board, it should at the same time tender 
 fie return of the money paid for the ticket.* 
 
 In the case just noticed, the plaintiff was prevented from entering the tpain. 
 Said Dundy, J. : " Necessary force may be used to prevent gamblers from enter- 
 ing trains, and if found on them engaged in gambling, and refusing to desist, 
 they may be forcibly expelled." It is not perceived why, according to the prin- 
 ciple of Vinton v. Middlesex Bailroad Company,^ gamblers, pickpockets, sneak- 
 thieves, and persons whose notoriously vicious character renders it extremely 
 probable that their presence will result in the robbery or swindling of other 
 passengers, may not be excluded even after they have taken passage upon the 
 train, and before they have begun to ply their vocation. The circumstance that 
 large numbers of the travelling public are defenceless persons, and that their 
 property, while on the journey, is quite insecure, would seem to be a sufficient 
 reason for vesting the carrier's servants with the power and duty of summarily 
 expelling such notorious law-breakers at any time from a raili-oad train, steam- 
 boat, street car, or other public conveyance. "The safeguard against an unjust 
 or unauthorized use of the power is to be found in the consideration that it can 
 never be properly exercised except in cases where it can be satisfactorily proved 
 that the condition or conduct of a person was such as to render it reasonably 
 certain that he would occasion discomfort or annoyance to other passengers if 
 he was admitted into a public vehicle, or allowed longer to remain within it."^ 
 If the probability of mere discomfort or annoyance is a sufficient reason for the 
 expulsion of an obnoxious passenger, a fortiori that of robbery ought to be. 
 
 The foregoing observations are prompted by the circumstance that sufficient 
 consideration does not seem to have been bestowed by Rolfe, B., upon the 
 
 1 7 Hurl. & N. 355 (affirming s. c. 6 Hurl. & a Vinton v. Middlesex R. Co., 11 Allen, 301, 
 
 N. 359). ' an<e, p. 6. 
 
 - Pittsburgh etc. R. Co. v. Valleley, 33 Ohio * Thurston r. Union Pacific R. Co., 4 Dill. 
 
 St. 345; s. c.l Reporter, 406; Murphy v. Union 321, ante, p. 10. 
 
 R. Co., 118 Mass. 228; Marquette v. Chicago '■> Ante, p. 6. 
 
 etc. R. Co., 33 Iowa, 562; Haley v. Chicago c Bigelow,C. J., in Vinton v. Middlesex R. 
 
 etc., R. Co., 21 Iowa, 15. Co., ante, p. 9.
 
 DRUNKEN AND DISORDERLY PASSENGERS. 303 
 
 Failure to execute Regulations. 
 
 security of passengers, in a nisi prius case, where he ruled that though certain 
 passengers were known to be pickpockets, that might be a reason for watching 
 them, but per se did not justify putting them off.' It cannot be seriously con- 
 tended, for example, that it is the duty of the conductor of a railroad train to 
 detail a squad of brakemen from the control of the train to watch a gang of 
 known pickpockets, or of the railroad company to supply every train with a 
 private police force for this purpose. ^ Such is not the duty of carriers or their 
 agents. Therefore, if the language of Rolfe, B., is the law, passengers are 
 without adequate protection against persons known to be dangerous, who have 
 boarded a public conveyance for the express purpose of robbery or swindling.* 
 The master of a ship has been held responsible for losses incurred by a pas- 
 senger at the hands of a pair of gamblers and tricksters, which it was in his 
 power to have prevented, because he was aware of the character of one of the 
 swindlers. The cheating was done in the presence of the clerk of the boat, and 
 the master was informed of the circumstance in season to have compelled the 
 pair to disgorge.* 
 
 § 3. Use of Profane Langtiage, and other Improprieties. — The use of pro- 
 fane and indecent language in the presence of ladies is such a breach of decorum 
 as will afford just cause for the removal of the passenger from the carrier's 
 conveyance, although he was provoked to such expressions by the demand of 
 the conductor for fare which had already been paid.^ If a person, having pur- 
 chased a ticket, attempts to get aboard a car when disgustingly drunk, or so 
 drunk as to be likely to violate the common proprieties and decencies of life, 
 he has no right to passage while in that condition ; ^ but slight intoxication, 
 such as would not be likely to seriously affect the conduct of the person intox- 
 icated, would not be sufficient ground to refuse him passage, although his be- 
 havior might not be in all respects strictly becoming.' 
 
 § 4. Failure to execute proper Police Begtilations — Consequential Injury 
 to Passenger. — As before stated, the duty of protection which the carrier owes 
 to the passenger includes a responsibility for the unlawful acts of fellow-pas- 
 sengers, when by the exercise of the highest degree of care those acts might have 
 been foreseen and prevented.^ As stated by Shipman, J., in Flint v. Norwichy 
 
 1 Coppin V. Braithwaite, 8 Jur. 875. This See also The People v. Caryl, 3 Park. Cr. 
 
 case was cited by Davis, J., in the opinion Cas. 326. 
 
 of the court in Pearson v. Duane, 4 Wall. ^ Murphy v. Union R. Co., 118 Mass. 228; 
 
 605, 613, ante, p. 20; but the facts of that Vinton v. Middlesex M. Co., ante, p. 6. The 
 
 case in no respect resemble those under State v. Koss, 26 N. J. L. 224 ; Pittsburgh etc. 
 
 discussion, aa the passenger was not a dan- R. Co. v. Vandyne, 57 Ind. 576; Hendricks 
 
 gerous person. v. Sixth Avenue R. Co., 12 Jones & Sp. 8. 
 
 « Pittsburgh etc. R. Co. v. Hinds, 53 Pa. ' Putnam v. Broadway etc. R. Co., 55 N. Y. 
 
 St. 512, 516, 8. c. on<e, p. 296, per Woodward, 108, 114; Pittsburgh etc. R. Co. i>. Vandyne, 
 
 C. J. supra. 
 
 ^ Weeks v. New York etc. R. Co., 72 N. Y. » I'ittsburgh etc. R. Co. v. Hinds, ante, p. 
 
 56; s. c. 17 Am. L. Reg. (N. 8.) 506; 6 Re- 295; Putnam v. Broadway etc. R. Co., 55 
 
 porter, 54. N. Y. 108; Flint v. Norwich etc. Transp. Co., 
 
 1 Smith V. Wilson (U. S. Dist. Ct. South. 34 Conn. 554; a. c. Blatchf. 158; Pittsburgh 
 
 Dist Ala., Busteed, J.), 31 How. Pr. 272. etc. R. Co. v. Pillow, 76 Pa. St. 510; New Or- 
 
 ° Chicago etc. R. Co. v. Griffln, 68 111. 499. leans etc. R. Co. v. Burke, 53 Miss. 200; a. c.
 
 304 POLICE DUTIES OF THE C.VKKIEU. 
 
 Notes. 
 
 etc. Transportation Company,^ carriers are '* bound to exercise the utmost 
 vigilance and care in maintaining order and guarding the passengers against 
 violence, from whatsoever source arising, which might reasonably be antici- 
 pated or naturally be expected to occur, in view of all the circumstances, and 
 of the number and character of the persons on board." Therefore, in a case in 
 which the plaintiff was injured by the accidental discharge of a gun which fell 
 from the hands of a soldier, engaged in a scuffle, who was one of a large body 
 of soldiers who had embarked upon the defendant's boat, — many of them drunk 
 and disorderly, though in charge of their officers and a guard, — he left it to the 
 jury to say whether the officers of the boat were properly vigilant in attempting 
 to quell the disorder, or in informing the passengers of the character of the men 
 and the danger of coming in contact with them.^ Although it is not the duty of a 
 railroad company to furnish a standing police force adequate to the resistance of 
 mobs of disorderly persons who may board its trains, j'et it is the duty of the 
 conductor of the train to make all possible resistance against such disorderly 
 persons, by calling together for this purpose all the train-men and passengers 
 willing to lend a helping hand to this end.* Whether the carrier has pro%ided a 
 sufficient number of officers for the protection of its passengers, is a question for 
 the jury.'' The conductor of a railroad train does not perform his duty on the 
 occasion of a violent disturbance among a large body of drunken passengers by 
 coming to the car door and counselling the sober passengers to throw the rioters 
 from the car,^ nor by simply hurrying an assaulted passenger from one car into 
 another, making no effort to remove from the train the persons guilty of the 
 assault, or prevent their further violence.^ . 
 
 If the assault upon the passenger is so sudden that it cannot be prevented, 
 and the conduct of the person making the assault has previously not been such 
 that his action might reasonably have been anticipated, the carrier will not be 
 responsible for the consequences.' Thus, an intoxicated passenger, having 
 Insulted two women who were in the company of the plaintiff 's intestate, was 
 ordered by the conductor of the street car in which they were riding to take a 
 seat and be quiet, which he did. After the conductor returned to the rear plat- 
 form of the car, the passenger resumed his abuse, and threatened the plaintiff 's 
 intestate with violence. None of this last conversation was in a tone suffi- 
 ciently loud for the conductor to hear, nor was there any evidence that it came 
 to his knowledge. The passenger then went upon the front platform, and 
 remained there quietly until the plaintiff 's intestate left the car and was assist- 
 ing his companions to alight, when the passenger in question came around from 
 the front platform and assaulted him with a car-hook, inflicting blows upon his 
 head from the effects of which he died. The Court of Appeals held that in this 
 case a motion for a nonsuit should have been granted. Said Allen, J., deliver- 
 
 4 Cent. L. J. 539 ; Holly v. Atlanta Street R. 3 Pittsburgh etc. R. Co. v. Hinds, ante, 
 
 Co. (Sup. Ct. Ga.), 7 Reporter, 460; Sherley p. 295. 
 
 V. Billings, 8 Bush, 147; Goddard v. Grand ^ Holly v. Atlanta Street R. Co. (Snp. Ct. 
 
 Trunk R. Co., 57 Me. 202, 213, per Walton, J. ; Ga.). 7 Reporter, 460. 
 
 Hendricks v. Sixth Avenue R. Co., 12 Jones ^ Pittsburgh etc. R. Co. v. Hinds, supra. 
 
 A Sp. 8. 6 New Orleans etc. R. Co. v. Burke, 53 
 
 1 Supra. Miss. 200 ; s. c. 4 Cent. L. J. 539. 
 
 2 Flint V. Norwich etc. Transp. Co., 34 ' Putnam v. Broadway etc. R. Co., 55 N. 
 Conn. 554. Y. 108.
 
 DRUNKEN AND DISORDERLY PASSENGERS. 305 
 
 Failure to execute Regulations. 
 
 ing the opinion of the court: "The fact that an individual may have drank to 
 excess will not, in every case, justify his expulsion from a public conveyance. 
 It is rather the degree of intoxication, and its effect upon the individual, and 
 the fact that by reason of the intoxication he is dangerous or annoying to the 
 other passengers, that gives the right and imposes the duty of expulsion.' 
 * * * If there vras any thing in the condition, conduct, appearance, or man- 
 ner of Foster [the assailant] from vphich the jury could reasonably infer that 
 there was reason to expect or anticipate an attack upon the deceased, or any 
 other passenger, either while upon the car or in the act of leaving, the facts 
 authorizing such inference should have been proved, and the knowledge of them 
 brought home to the conductor." * 
 
 Although the circumstances of an assault upon a passenger may be such that the 
 company will be liable for injuries sustained by the passenger, yet this liability 
 does not cover every species of damage. Thus, the car in which the plaintiff 
 was a passenger was left standing alone, in the city of New York, without any o 
 the company's servants upon it. The plaintiff, while leaving the car, was 
 violently assaulted and robbed of a large quantity of bonds, by three persons, 
 whose presence upon the car was unknown to the defendant's servants, though 
 it might have been known but for their negligence. In an action for the value of 
 the securities thus taken from the passenger, the court held that the defendant 
 owed no such duty to the plaintiff as that of an insurer of the safe carriage of 
 his securities in the mode of carriage adopted by him.' But where the police 
 regulations of a steamboat are so lax that time and opportunity is given a thief, 
 without detection to enter a state-room of the ladies' cabin, which was properh 
 fastened, and steal therefrom a portion of the plaintiff 's baggage, the proprie- 
 tors of the boat were held responsible for the loss.* 
 
 J Id. 114. 56 ; 8. c. 17 Am. L. Reg. (N. s.) 506 ; 6 Reporter, 
 
 2 Id. 118. See also New Orleans etc. R. Co. 64. 
 
 V. Burke, .53 Miss. 200, 225. •• Walsh v. The H. M. Wright, Newb. Adm. 
 
 « Weeks v. New York etc. R. Co., 72 N. Y. 494. But see Abbott v. Bradstreet, 55 Me. 530. 
 
 20
 
 CHAPTEK IX. 
 
 REGULATIONS OF THE CARRIER. 
 
 Leading Cases: 1. Day v. Owen. — Regulations must be reasonable : whether 
 so, a mixed question of law and fact — Exclusion of 
 colored passenger from cabin of steamboat. 
 
 2. Bass V. Chicago and North- Western Bailway Company. — 
 
 The same subject — Exclusion of male passenger from 
 ladies' car. 
 
 3. Chicago, Burlington, and Qiiincy Bailroad Company v. Parks. 
 
 — Discrimination between price of ticket and fares paid 
 on the train. 
 
 4. Du7in V. Grand Trunk Bailway. — Passengers upon freight- 
 
 trains are not presumed to have knowledge of a regulation 
 of the company forbidding the reception of passengers 
 upon such trains. 
 
 Notes: § 1. Power of carriers to establish regulations. 
 
 2. Regulations as to exhibition and delivery of tickets. 
 8. Passengers riding without ticket, or without a proper ticket. 
 4. Refusal to pay fare. 
 
 6. Discrimination in price of tickets purchased at the com- 
 pany's office and fare paid on the train. 
 
 6. Transportation of passengers upon freight-trains. 
 
 (1.) In general. 
 
 (2.) Who are to be regarded as passengers. 
 
 7. Classification of passengers. 
 
 (1.) According to sex. 
 (2.) According to color. 
 
 8. Exclusion of "runners" from carrier's vehicles and 
 
 premises. 
 
 1. REGULATIONS MUST BE REASONABLE — EXCLUSION OF COLORED 
 
 passenger from cabin of steamboat. 
 
 Day v. Owen.* 
 
 Supreme Court of Michigan, 1858. 
 
 Hon. George Maktin, Chief Justice. 
 *' Randolph Manning, ] 
 " Isaac P. Christiancy, I Judges. 
 " James V. CAMPBELL,t I 
 
 1. Carrier may make reasonable Regulations. — The right to be carried by a common 
 carrier of passengers is a right superior to the rules and reguhitions of the conveyance, 
 
 {30G) * Repovted, 5 Mich. 520. t Not sittiJijr.
 
 REGULATIONS OF THE CARRIER. 307 
 
 Supreme Court of Michigan. 
 
 and cannot be affected by them; but the accommodation of passengers while being 
 transported is subject to such rules and regulations as the carrier may think proper to 
 make, provided they be reasonable. Such rules and regulations must have for their 
 object the accommodation of passengers generally, and they must be of a permanent 
 nature, and not made for a particular occasion or emergency. 
 
 "2. Pleading- such Keg-ulations. — It is sufficient, in pleading, to state the rule or regula- 
 tion; that the plaintiff comes within it; and to aver its reasonableness. The facts 
 upon which the party relies to establish its reasonableness need not be spread upon 
 the record. 
 
 3. Reasonableness of Regulations a Mixed Question of Law and Fact — Case in 
 Judgment — Exclusion of Colored Passenger from Cabin of Steamboat. — In 
 
 an action against a common carrier of passengers for refusing the plaintiff (a colored 
 person) cabin passage, the defence was, that, by the regulations and established course 
 of business of the boat, persons of the plaintiff's race were not allowed the use of the 
 cabin as passengers, which regulation and course of business were averred to be 
 reasonable; to which the iilaintiff demurred. Such demurrer was not well taken, the 
 reasonableness of the regulation in question being a mixed question of law and fact, 
 to be found by the jury on the trial, under the instructions of the court, and not to be 
 determined on demurrer. 
 
 Error to Wayne Circuit. 
 
 Ttie action was case against the defendant as a comrnori carrier. 
 
 The first count in the declaration alleged that the defendant was the 
 owner of the steamer Arrow, plying between Detroit and Toledo, and 
 that the plaintiff applied on lioard of said steamboat for a cabin passage 
 from Detroit to Toledo, and offered to pay for the same, which was 
 averred to be a usual mode of conveyance of passengers upon said 
 boat ; that, although there was room, the defendant refused to give 
 the plaintiff a cabin passage, wiiereby the plaintiff was put to great 
 expense, trouble, and delay, and obliged to travel in the night a hundred 
 miles out of his way to reach Toledo. A second count alleges that the 
 defendant was a common carrier, by water, of passengers in and by the 
 cabin and deck of said steamboat, for the conveyance of travellers in 
 and by said cabin, or in and upon said deck, according as such travellers 
 may require, for reasonable hire and reward, which was greater in case 
 conveyance was required in the cabin than in case it was required upon 
 the deck, and was the proprietor of said cabin, or covered room, and 
 of said open deck, as well as of all parts of said vessel ; that the 
 l)laintiff went on board of said boat and demanded to be carried in 
 said covered room to Toledo ; but, although the plaintiff tendered the 
 greater hire and reward, and although the vessel was ready to start, and 
 said covered room was not full of passengers, and there was no ground 
 for refusal, yet the defendant refused to carry plaintiff in said cabin, 
 etc., causing plaintiff great expense, loss, and mortification. A third 
 count alleged a refusal to carry generally, stating that the defendant set 
 up no ground of refusal except that the plaintiff was a colored man.
 
 308 REGULATIOxNS OF THE CARRIER. 
 
 Day V. Owen. 
 
 This count contained no averment that plaintiff offered, or was ready 
 and willing to pay the fare. 
 
 The defendant pleaded the general issue, and appended thereto three 
 notices of special matter to be shown at the trial : — 
 
 " 1. That the plaintiff was a colored man, and not a white man; and 
 that by the custom of navigation, and the usage prevailing among steam- 
 boats employed in carrying passengers on Detroit River and Lake Erie, 
 colored persons were not allowed the privileges of cabin passengers. 
 
 "2. That by the regulation and established course of business of the 
 said boat, colored persons were not received as cabin passengers, and 
 were not allowed to use the cabin as such passengers ; and saiii regula- 
 tion and course of business were averred to be reasonable. 
 
 "3. That the plaintiff, by his color and his race, was excluded from 
 ordinary social and familiar intercourse with white persons by the 
 custom of the country, and that his admission into the cabin of said 
 steamboat would have been offensive to the other cabin passengers." 
 
 General demurrer by the plaintiff, which was overruled, and judgment 
 for defendant for costs rendered ; and thereupon the plaintiff brought 
 error. 
 
 Holding said notices a sufficient defence is assigned as error. 
 
 Walkers & Bussell, for plaintiff in error ; S. T. Douglass, for defend- 
 ant in error. 
 
 Manning, J. — The declaration contains three counts. The first and 
 second for refusing to carry the plaintiff in the cabin, the third for 
 refusing to carry him generally. 
 
 Tliis last count is bad, as it contains no averment that plaintiff offered, 
 or was ready and willing, to pay the fare. 
 
 The notice accompanying the general issue sets up three several 
 grounds of defence to the declaration, and may therefore be considered 
 as three separate notices. The demurrer is to the whole notice ; and if 
 any one of these defences is good to the other counts in the declara- 
 tion, the demurrer was properly overruled, and the judgment of the 
 court below must be affirmed. 
 
 The second ground of defence stated in the notice is, that b}' the 
 regulations and established course of business of the steamer, colored 
 persons were not received as cabin passengers, and were not allowed to 
 use the cabin as such passengers ; and avers such regulations and 
 course of business to be reasonable. 
 
 The second count of the declaration states two modes of carrjnng 
 passengers, — one on deck, and the other in the cabin. It then alleges 
 that passengers were carried either way, as they might require, on paj'iug
 
 COLORED PASSENGERS. 309 
 
 Supreme Court of Michigan. 
 
 the necessary fare, — that is, cabin fai?eif they wished to go in the cabin, 
 and deck fare if on deck. 
 
 The right to be carried is a right superior to the rules and regulations 
 of the boat, and cannot be affected by them. If defendant had refused 
 to carry the plaintiff generally, he would be liable, unless he could show 
 some good excuse releasing him from the obligation. While this is a 
 right that cannot be touched by rules and regulations, the accommoda- 
 tion of passengers while being transported is subject to such rules and 
 regulations as the carrier may think proper to make, provided they be 
 reasonable. 
 
 The right to be carried is one thing ; the privileges of a passenger 
 on board of the boat, what part of it may be occupied by him, or he 
 have the right to use, is another thing. The two rights are very differ- 
 ent. The latter, and not the former, right is subject to reasonable rules 
 and regulations, and is, where such rules and regulations exist, to be 
 determined by them. Hence the allegation we have already adverted 
 to in the second count, as it relates to the accommodation of passengers 
 while being transpox'ted, must be understood as a statement of a right 
 that is subject to rules and regulations where they exist ; and so far, 
 therefore, as that count, in the statement of that right, conflicts with the 
 defendant's notice, or the notice with it, the notice is a denial of the 
 right itself, or, more properly speaking, an admission and avoidance of 
 the prima facie case of the plaintiff. 
 
 The refusal to allow plaintiff the privilege of the cabin, on his tender- 
 ing cabin fare, was nothing more or less than denying him certain 
 accommodations while being transported, from which he was excluded 
 by the rules and regulations of the boat. 
 
 All rules and regulations must be reasonable ; and, to be so, they 
 should have for their object the accommodation of the passengers. 
 Under this head we include every thing calculated to render the trans- 
 portation most comfortable and least annoying to passengers generally ; 
 not to one, or two, or any given number, carried at a particular time, 
 l)ut to a large majority of the passengers ordinarily carried. Such rules 
 and regulations should also be of a permanent nature, and not be made 
 for a particular occasion or emergency. In pleading, it is suflicient to 
 state the rule or regulation ; that plaintiff comes within it ; and to aver 
 its reasonableness. It is not necessary to spread upon the record the 
 facts, which may be more or less numerous, that the party relies on to 
 establish its reasonableness. It is otherwise where defendant refuses 
 to carry the plaintiff generally. In such cases, the facts constituting 
 his excuse, if he have one, must appear on the record, that the couic
 
 310 REGULATIONS OF THE CARRIER. 
 
 Day V. Owen. 
 
 may determine whether it be good or bad. But the reasonableness of a 
 rule or regulation is a mixed question of law and fact, to be found b}^ 
 the jury on the trial, under the instructions of the court. It ma}' 
 depend on a great variety of circumstances, and may not improperly 
 be said to be in itself a fact to be deduced from other facts. It is not 
 to be inferred from the rule or regulation itself, but must be shown pos- 
 itively. 
 
 The notice states plaintiff is a colored person, and that, by the rules 
 and regulations of the boat, colored persons were excluded from the 
 cabin. The reasonableness of the rule, if it be reasonable, does not 
 depend upon the color of the plaintiff, or on the class of persons to 
 which he belongs, all of whom are alike excluded, but on the effect 
 the carrying of such persons in the cabin would have, not on the defend- 
 ant's business as a carrier, — although it might be to his advantage, — 
 but on the accommodation of the mass of persons who have a right 
 and are in the habit of travelling on his boat. As the duty to carry 
 is imposed by law for the convenience of the community at large, and 
 not of individuals except so far as they are a component part of the 
 community, the law would defeat its own object if it required the 
 carrier, for the accommodation of particular individuals, to incommode 
 the community at large. He may do so if he chooses, but the law does 
 not impose it on him as a duty. It does not require a carrier to make 
 any rules whatever, but if he deems it for his interest to do so, looking 
 to an increase of passengers from the superior accommodation he holds 
 out to the public, to deny him the right would be an interference with a 
 carrier's control over his own property in his own way, not necessary to 
 the performance of his duty to the public as a carrier. 
 
 The second defence stated in the notice is, we think, a sufficient 
 answer to the second count of the declaration. We also think it good 
 as to the first count, which does not in terms make mention of tlie 
 carrying of passengers on deck. It states defendant refused to carrj^ 
 the plaintiff in the cabin, and not that he refused to carry him generally, 
 and seems to admit the carrying of passengers in other parts of the 
 boat as well as in the cabin, and therefore does not make out a case of 
 refusal to carry generally. The other questions raised on the argument 
 it is not necessary to decide, as the one we have been considering dis- 
 poses of the whole case. 
 
 The judgment below must be affirmed, with costs. 
 
 Martin, C. J., and Christiancy, J., concurred. Campbell, J., did 
 not sit in this case, having been of counsel for one of the parties. 
 
 Judgment affirmed.
 
 MALE PASSENGERS IN LADIES' CAR. 311 
 
 Supreme Court of Wisconsin. 
 
 2. the same subject — exclusion of male passenger from 
 
 ladies' car. 
 
 Bass v. Chicago and North-Western Kailway Company.* 
 
 Supreme Court of Wisconsin, 1874. 
 
 Hon. Edward G. Ryan, Chief Justice. 
 " Orsamus Cole, 1 j^^^^^^ 
 *• William P. Lyon, J 
 
 1. Law and Fact — Reasonableness of Beg'ulation reserving: a separate Oar for 
 
 Ladies and their Attendants. — The question of the reasonableness of regulations 
 of a railway company 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 instruc- 
 tions. Considered as a question of law, a regulation by which one car on each 
 passenger-train is set apart primarily for the use of ladies, and gentlemen accompany- 
 ing them, is eminently proper and reasonable. 
 
 2. Enforcement of Regulation — Passengers must be supplied with Seats at all 
 
 Events. — Such regulation must be reasonably enforced. The continued validity of the 
 regulation does not depend upon its being uniformly and indiscriniiuately enforced 
 against all men not accompanied by ladies. If there be no sitting room in the regular 
 passenger- cars for passengers excluded by such regulation from the ladies' car, and 
 there be room to seat them there, they cannot be left standing without a breach of the 
 contract of carriage. 
 
 3. Duty of Obedience by Passengers to Proper Regulations. — Passengers are bound 
 
 to submit to the authority of the officers in charge of a railroad train, exercised upon 
 the responsibility of the railroad company, in the enforcement of order upon the train 
 and in the execution of reasonable regulations for the safety and comfort of passengers 
 and the security of the train. Therefore, it is erroneous to chaige that " if there was 
 no room for him (the passenger) to sit in any of the cars except the smoking and 
 ladies' cars, he had a right to enter the ladies' car although there was a regulation 
 to the contrary," and to refuse an instruction to the effect that " if the plaintiff 
 attemi)ted to enter the ladies' car after being refused admittance to it, the defendant's 
 servants had a right to use sufficient force to prevent him from entering." 
 
 Appeal from the Circuit Court of Outagamie County. 
 
 The complaint averred, in substance, that on June 4, 1872, the 
 plaintiff was received into one of the defendant's passenger-trains at 
 Fond du Lac, to be conveyed as a passenger from that city to Appleton 
 for the sum of $1.45, which was paid; that there was no room in the 
 passenger-cars, except the rear car, and the plaintiff was compelled to 
 take passage in the rear car, or in the smoking-car, which was offensive ; 
 that after riding in the smoking-car to Oshkosh, he entered the rear car 
 while the same was crossing the bridge over Fox River at Oshkosh ; 
 and that while crossing that bridge the defendant's servants, employed 
 
 • Reported, 36 Wis. 450.
 
 ol2 KKUULATIOXS OF THE CARRIER. 
 
 Bass V. Chicago and North-Western Railway Company. 
 
 in the management of that train, forcibl}' seized him, and violently pushed 
 and dragged him out of the car upon the platform, without any request 
 to leave, or any explanation, thereby injuring his person and endanger- 
 ing his life. The answer denied most of these averments, and alleged, 
 in substance, that the car into which the plaintiff entered was a ladies' 
 car, set apart by a regulation of the company for ladies, and for gentle- 
 men accomi)anying ladies, as the plaintiff knew ; that the plaintiff was 
 informed before entering that he could not go into said car, and was 
 requested to take a seat in the car next in front of the ladies' car, in 
 which there were vacant seats; and that the defendant's servants used 
 only so much force as was necessary to remove the plaintiff. 
 
 At the opening of the trial, the defendant's counsel objected to the 
 introduction of any evidence, on the ground that the complaint did not 
 state a cause of action ; but the objection was overruled. The evidence 
 for the plaintiff tended to prove the allegations of the complaint as 
 above stated ; that at Oshkosh, when the plaintiff sought admission to 
 the rear car, he found the door locked, and stood on the platform until 
 the train was starting, when a brakeman and a friend of his came on the 
 platform ; that the brakeman unlocked the door and admitted his friend, 
 and stepped to one side, when the plaintiff passed in, and when going 
 down the aisle he was seized by the brakeman, who attempted to pull 
 him out, and afterwards succeeded by the aid of another person ; that 
 tlie bridge was an open one, and a person falling from the train would 
 be likely to fall into the river; that the plaintiff 's hand and arm were 
 cut and bruised in the scuffle, and his ring and cane broken ; that he 
 knew the rear car was designated as a ladies' car, but liad ridden in 
 that car, and known others to ride in it, unaccompanied by ladies, many 
 times. Evidence was introduced, under objection, tending to show that 
 it was customary for the brakeman to admit gentlemen without ladies to 
 (his car, on receiving a little money or other consideration; that the 
 smoking-car was rudely furnished with wooden seats, and was a second- 
 class car ; that there was only one other car besides the ladies' car ; and 
 that the latter was not full, but all the seats of the other car were filled. 
 
 The evidence for the defence tended to show that the rear car was 
 set apart for ladies and for gentlemen accompanying them ; that it was 
 the custom, when the brakeman knew there was no room in other cars, 
 from his own observation, to allow gentlemen to go into the ladies' car; 
 that this regulation was for the protection of ladies, and its enforce- 
 ment rested somewhat in the discretion of the brakeman ; that at the 
 time of the difficulty there were vacant seats in the gentlemen's car; 
 ihat the plaintiff was notified by the brakeman not to go into the ladies'
 
 MALE PASSENGERS IN LADIES' CAR. 313 
 
 Supreme Court of Wisconsin. 
 
 car, and was requested to take a seat in the other ear or to wait until 
 the conductor came ; and that the person who assisted in pushing the 
 plaintiff had nothing to do with the train. 
 
 The court charged the jury, among other things, in substance, that 
 the regulation excluding gentlemen unaccompanied by ladies from the 
 ladies' car, while there were sufficient room and comfortable seats in 
 other cars, and that admitting others into that car when the brakeman 
 knew that the other cars were crowded, was a reasonable one, and that 
 the company might reasonably enforce it. "But to entitle the com- 
 pany so to enforce the regulation, I think it should have been observed 
 and kept by the company itself; and that, if you find from the evidence 
 that the company, by its officers, at and before the time when the 
 plaintiff was a passenger as shown in this case, was in the daily habi" 
 of disregai'ding the regulation, by allowing pei'sons other than ladies, 
 and gentlemen accompanied by ladies, to ride in that car, then the com- 
 pany cannot insist that such other persons so allowed to enter that car 
 were not lawfully entitled k) their seats therein." 
 
 The instructions given and refused as to the right of the plaintiff to 
 enter the ladies' car are sufficiently stated in the latter part of the 
 opinion. 
 
 Verdict for the plaintiff for $4,500, and judgment accordingly; from 
 which the defendant appealed. 
 
 William Rugei\ for appellant; Ten/or & Sutherland^ for respondent. 
 
 Ryan, C. .j. — The learned judge of the court below charged the jury 
 that the appellant's regulation setting apart a car in each passenger- 
 train primarily for the separate use of women, and men travelling with 
 them, is a reasonable one. He did not submit the question to the jury, 
 and both parties appear to have assented to the instruction. 
 
 The general rule to be found in the books is that the reasonableness 
 of such regulations is a mixed question of law and fact, to be submitted 
 to the jury under proper directions.^ And at least one court, pointing 
 the distinction between by-laws of a corporation affecting the corpora- 
 tors only, and regulations affecting third persons, has held that the 
 reasonableness of such by-laws rests in their lawfulness, and is there- 
 fore a pure question of law ; while the lawfulness of such regulations 
 rests in their reasonableness, and is therefore a pure question of fact.^ 
 We cannot think that the latter proposition is well-founded in principle 
 or sustained by authority, as applied to regulations affecting passengers 
 by railroad in transitu. Many cases, without passing expressly on the 
 
 1 1 Redf. on Rys. 88. 435; Morris etc. R. Co. v. Ayres, 29 N. J. L. 
 
 2 The State v. Overton, 24 N. J. L. (4 Zab.) 393.
 
 314 REGULATIONS OF THE CARRIER. 
 
 Bass V. Chicago and North-Western Railway Company. 
 
 point, deal ■with the propriety of such regulations as with a question of 
 law. Even in the case in 4 Zabriskie, the court does so arguendo. Per- 
 haps it is practically so in plain cases ; for courts would not hesitate to 
 overrule the findings of juries against their own clear views of the reason- 
 ableness or unreasonableness of such regulations. But there may well 
 be cases of doubt, largely of the nature of questions of fact, in which 
 courts would not be justified in declining to take, or in disregarding, 
 the finding of the jury. It may be said to partake of the character of 
 debatable ground between court and jury, and is so properly held to be 
 a mixed question of fact and law.^ And it is always proper to submit 
 the question, under instructions, to the jury.^ 
 
 In this case, regarding it in the light of a question of law, we entirely 
 ■concur with the court below in the opinion that the regulation in ques- 
 tion is an eminently reasonable and proper one. 
 
 In JencTcs v. Coleman, Mr. Justice Story likens the duties of carriers 
 of passengers by steamboat to those of innkeepers. And in The Com- 
 monwealth V. Power, Shaw, C. J., after saying that the owners of 
 steamboats and railroads are in this respect on the same footing, adds : 
 "An owner of a steamboat or railroad, in this respect, is in a condition 
 somewhat similar to that of an innkeeper, whose premises are open to all 
 guests. Yet he is not only empowered, but he is bound, so to regulate 
 his house, as well with regard to the peace and comfort of his guests 
 who there seek repose, as to the peace and quiet of the vicinity, as 
 to repress and prohibit all disorderly conduct therein ; and of course 
 he has a right, and is bound, to exclude from his premises all disorderly 
 persons, anc^, all persons not conforming to regulations necessary and 
 proper to secure such quiet and good order." 
 
 This authoritative comparison of the duties of railroad companies to 
 their passengers to those of innkeepers to their guests is ver}' sugges- 
 tive of the scope of the former. ^ And of course the power to regulate 
 must be commensurate with the duty to care for and protect. ** 
 
 The use of railroads for the common carriage of passengers has not 
 only vastly increased travel generally, but has also specially led women 
 to travel without male companions. To such, the protection which is 
 a natural instinct of manhood towards their sex is specially due b^^ 
 common carriers. ^ And in view of the crowds of men of all sorts and 
 
 1 The Commonwealth v. Power, 7 Mete. Coleman, ow«e, p. 11; Chamberlain «. Chand- 
 
 B96; Day V.Owen, 5 Mich. 520; 8. c. ante, p. 306. ler, 3 Mason, 242; Nieto v. Clark, 1 Cliff. 145. 
 
 « Jencks v. Coleman, 2 Sumn. 221; s. c. * 1 Redf. on Rys. S8-92. 
 
 «n<c, p. 11. 5 Chamberlain v. Chandler, and Nieto v. 
 
 * See Day r. Owen, ante, p. 306; Jencks ». Clark, supra.
 
 MALE PASSENGEKS IN LADIES ' CAR. 315 
 
 Supreme Court of Wisconsin. 
 
 conditions and habits constantly travelling by railroad, it appears to 
 us to be not only a reasonable regulation, but almost if not quite a 
 humane duty, for railroad companies to appropriate a car of each pas- 
 senger-train primarily for women, and men accompanying them, from 
 which men unaccompanied by women should be excluded, and even 
 women, or men accompanying women, of offensive character or habits ; 
 so as to group women of good character on the train together, sheltered 
 as far as practicable from annoj'ance and insult. It is a severe com- 
 ment on our civilization that such a regulation should be necessary, but 
 the necessity is patent to all experience and intelligence. And the reg- 
 ulation not only comes within the principle established in all the cases 
 we have examined, but has judicial sanction.' 
 
 It is not enough that the regulation is reasonable : it must be reason- 
 ably enforced. And we are unable to agree with the learned judge of 
 the court below, in the opinion that such a regulation, to remain valid, 
 must be strictly and uniformly enforced. We cannot think that the 
 occasional use or even abuse of a discretion to admit into the ladies* 
 car persons not admissible under the letter of the regulation, can oper- 
 ate to abrogate the regulation itself. There may well be cases of age, 
 or infirmity, or other ground of discrimination in which the regulation 
 need not be rigidly enforced. And the regulation, for the convenience 
 of some passengers, should not be enforced to the violation of the rights 
 of other passengers. Railroad companies have no right to overcrowd 
 their trains to the inconvenience of passengers. ^ Passengers are 
 entitled to seats, and it is the duty of the officials of the train to see 
 that they have them. If passengers appropriate more than one seat 
 each, leaving others without seats, it is not the duty or the right of the 
 latter to wrangle or struggle with the former for seats ; it is the duty of 
 ihe proper officers of the train to regulate that. It is essential that 
 good order should prevail on every passenger-train ; and it is not likely 
 always to prevail on crowded trains, if the dignitaries of the train leave 
 the passengers to shift and scramble for themselves. And if there be 
 not sitting room for passengers excluded by the regulation from the 
 ladies' car, and there be room to seat them there, they cannot be left 
 standing without breach of the contract of carriage. But, in such 
 case, in the admission of male passengers into the ladies' car, the object 
 of the regulation must be regarded and observed, and it must neces- 
 sarily rest in the discretion of the proper officials of the train to select 
 
 1 The state v. Overton, 24 N. J. L. 435; « 2 Redf. on Rys. 217; Pittsburgh etc. R. 
 
 Pittsburgh etc. R. Co. v. Uinds, 53 Pa. St. 512 ; Co. v. Hinds, ante, p. 295. 
 8. c. ante, p. 295.
 
 316 REGULATIONS OF THE CARRIER. 
 
 Bass V. Chicago and North-Western Railway Company. 
 
 those to be admitted. This discretion must be somewhere ; and the 
 good order of the train and the object of the regulation are not com- 
 patible with the choice of passengers to make their way, at will and 
 without license or excuse, into a car from which the regulation primarily 
 excludes them. In such cases, as in others, it would not comport with 
 the comfort and convenience of the passengers, nor always with their 
 safety, for some of them to assert their rights with a strong hand. 
 And the safety and comfort of the passengers generally are not to give 
 way to the safety or convenience of one or a few.^ For all violations 
 of their rights as passengers, all passengers have their remedy by action 
 on the contract of carriage ; but they must submit to the necessary and 
 reasonable discipline of the train. 
 
 "When carriers undertake to convey passengers by the powerful but 
 dangerous agency of steam, public policy and safety require that they 
 be held to the greatest possible care and diligence. The personal safety 
 of passengers should not be left to the sport of chance or the negli- 
 gence of careless agents. Any negligence, in such cases, may well 
 deserve the epithet of gross." ^ " The right and duty of toe defendant, 
 in running the road, to establish and enforce reasonable regulations for 
 the government of the line has been frequently recognized by the courts 
 in this country. The safety and security of the travelling public, as 
 well as the interest of the railroad itself, require that the right and duty 
 exist and be enforced. Upon that ground it has been held that the 
 defendants and their servants may not only exclude those who refuse 
 to pay their fare, or to comply with such reasonable regulations as are 
 made for their government, but they may also rightfully inquire into 
 the habits or motives of those who claim the right of passage. While 
 the law requires of the company the adoption of such regulations as 
 are necessary for the safety and convenience of passengers in their 
 trains, they have also the right to adopt such reasonable regulations as 
 are necessary for their own security ; and those regulations are to be 
 mutually observed. If they are not complied with by passengers, the 
 company may not only refuse them admission within their cars, but, if 
 they are within, they may remove them."^ 
 
 These views are sanctioned by many reported cases ; and they impose 
 great responsibility on railroad companies, and devolve great correlative 
 power upon officers in charge of passenger-trains. These oflScers may 
 be guilty of acts of arbitrary oppression, beyond endurance, towards 
 
 1 Day V. Owen, ante, p. 306. 
 
 « Philadelphia etc. U. Co. v. Derby, U How. 468, ; s. c. ante, p. 31. 
 
 * Stephen v. Smith, 29 Vt. 160.
 
 MALE PASSENGERS IN LADIES ' CAR. '317 
 
 Supreme Court of Wisconsin. 
 
 passengers, which might warrant resistance. But we feel warranted by 
 principle and authority to hold, that in the enforcement of order on the 
 train, and in the execution of reasonable regulations for the safety and 
 comfort of the passengers and for the security of the train, the authority 
 of these officers, exercised upon the responsibility of the corporations, 
 must be obeyed by passengers, and that forcible resistance cannot be 
 tolerated. They act on the peril of the corporation and their own. 
 Indeed, as that fictitious entity, the corporation, can only act through 
 natural persons, its officers and servants, and as it of necessity commits 
 its trains absolutely to the charge of officers of its own appointment, 
 and passengers, of necessity, commit to them their safety and comfort 
 m transitu, under conditions of such peril and subordination, we are 
 disposed to bold that the whole power and authority of the corporation, 
 pro hoc vice, is vested in these officers ; and that as to passengers on 
 l)oard, they are to be considered as the corporation itself; and that 
 the consequent autliority and responsibility are not generally to be 
 straitened or impaired by any arrangement between the corporation and 
 the officers ; the corporation being responsible for the acts of the offi- 
 cers in the conduct and government of the train, to the passengers 
 travelling by it, as the officers would be for themselves if they were 
 themselves the owners of the road and train. We consider this rule 
 essential to public convenience and safety, and sanctioned by great 
 weight of authority.^ 
 
 On the trial in the court below there was evidence tending to show 
 that the respondent, being a passenger on the appellant's train, to which 
 a ladies' car was attached, was, with other male passengers, kept by 
 the officers of the train without a seat, there being no unoccupied seats 
 except in the ladies' car ; that he had been in the smoking-car, in which 
 he was not bound to remain ; and that he and others stood for some 
 time in one of the ordinary passenger-cars without attention from the 
 officers of the train. If these were the facts, without some special 
 excuse for the neglect, it is plain that the officers of the train were 
 guilty of a breach of duty to the passengers so left standing. There 
 was evidence tending to show that the respondent then went to the 
 
 1 The Commonwealth v. Power, 7 Mete. v. New York etc. R. Co., 106 Mass. 160; Sulli- 
 
 596; Day v. Owen, ante, p. 30G; Jencks v. van v. Phila. etc. R. Co., 3G Pa. St. 2:U; 
 
 Coleman, ante, p. 11; Pittsburgh etc. R. Co. Pennsylvania R. Co. v. Vandiver, 36 Pa. St. 
 
 V. Hinds, ante, p. 295; Phila. etc. R. Co. v. 298; Sherley v. Billings, 8 Bush, 147; Hig- 
 
 Derby, ante, p. 31; Chamberlain v. (Jhandler, gins v. Watervliet Turnpike Co., 46 N. Y. 23; 
 
 3 Mason, 243; Nieto v. Clark, 1 Cliff. 145; Baltimore etc. R. Co. v. Blocher, 27 Md. 
 
 .Stephen v. Smith, 29 Vt. ICO; Moore v. Fitch- 277; flhicago etc. R. Co. v. Parks, 18 111. 4C0; 
 
 burg R. Co., 4 Gray, 4(;5; Vinton v. Middle- s. c. post, p. 319; tioddard v. Grand Trunk 
 
 8ex R. R., 11 Allen, 304 ; «. c. ante, p. 6 ; Coleman R. Co., 57 Me. 202. See 2 Redf. on Rys. 220, 230.
 
 318 REGULATIONS OF THE CARRIER. 
 
 Bass V. Chicago and North-Western Railway Company. 
 
 ladies' car for a seat ; that he found the door at first locked ; but that 
 on its being unlocked by a brakeman, he entered, or attempted to enter, 
 the car. Whether he entered the car peaceably and without being for- 
 bidden to enter it, or whether he was forbidden and attempted to enter 
 the car forcibly, were questions on which the evidence was conflicting: 
 and, under the instructions given to the jury, the vei'dict does not 
 determine the fact. In either case, it does appear that he was forcibly 
 driven upon the platform of the car while the train was crossing a 
 river, when a fall from the platform would probably have proved fatal 
 to him. 
 
 In the circumstances stated, if such were the truth, we cannot think 
 that the respondent was bound to wait the slow pleasure of the officials 
 of the train to give him a seat, if the ladies' car was open to his peace- 
 able entrance. If so open, we think that he might well enter it for a 
 seat ; for, as we have said, the regulation for convenience siiould give 
 way to the right of contract. And if the oflScers of the train neither 
 furnished him with a seat nor forbade or barred his entrance into the 
 ladies' car, we are inclined to regard it as equivalent to their license to 
 him to enter it. But if his entrance were barred or forbidden, we 
 cannot hold that he could of right attempt by force to enter the car. 
 If, however, being neither barred nor forbidden, he entered the car 
 peaceably, and was peaceably in it, where there was a seat for him, to 
 which he was entitled, and which he could not find elsewhere, we hold 
 that he was there riglitfuUy. Being there rightfully, under his contract 
 of carriage, we cannot recognize any riglit of any officer of the train 
 to remove him by force ; certainly not without proffering him a seat 
 elsewhere. And we deem it our duty to sa}^ that no circumstances 
 could have justified the brakeman, if such were the fact, in violently 
 throwing the respondent on the platform while the train was moving 
 over the bridge. Some discretion and humanity are as essential to such 
 persons as zeal, due or undue. 
 
 The questions of fact as to the entrance of the respondent into the 
 car, and the manner of it, as we have stated them, and on which tho 
 respondent's right to recover largely depends, do not appear to us to 
 have been properly submitted to the jury, with proper instructions to 
 guide them in their finding. 
 
 On the contrary, the learned judge refused the appellant's request to 
 charge the jury that if the respondent attempted to enter the ladies' 
 car after being refused admittance to it, he was a wrong-doer in it and 
 the appellant's servant had a riglit to use sufficient force to prevent 
 him from entering the car. And he did charge the jury that if there
 
 PURCHASE OF TICKET liEFORE ENTERING VEHICLE. 31i> 
 
 Supreme Court of Illinois. 
 
 was no room for the respondent to sit in any of the cars except the 
 smoking and ladies' cars, he had a right to enter the ladies' car, although 
 there was a regulation to the contrary. 
 
 The instruction refused and the instruction given make it manifest 
 that the learned judge was of opinion that, ])eing without a seat in the 
 other cars, the respondent had a right to enter the ladies' car by force, 
 after being forbidden to enter it. There was no qualification of the 
 charge given. And the jury must have understood it as we do. 
 
 With the views which we have already expressed, we have no choice 
 but to hold this charge to have been erroneous, and to reverse the judg- 
 ment of the court below and remand the cause for a new trial. 
 
 So ordered. 
 
 3. discrimination between price of tickets and fares paid 
 
 on the train. 
 
 Chicago, Burlington, and Quincy Eailroad Company v. 
 
 Parks.* 
 
 Supreme Court of Illinois, 1857. 
 
 s, C 
 
 I Judges. 
 
 Hon. Walter B. Scates, Chief Justice. 
 " John D. Caton, 
 " Onias C. Skinner, 
 
 1. Discrimination between Price of Tickets and Fares paid on the Train. —Passen- 
 
 gers who neglect to purchase tickets at stations before embarking on the train may be 
 charged additional fare, if proper conveniences and facilities are furnished them for 
 procuring tickets. If a passenger pays on the train from one station to another, he 
 may be compelled to pay the extra charge again, if he desires to proceed further, 
 unless he procures a ticket to such destination. The first contract of carriage termi- 
 nates with the distance paid for. 
 
 2. Where Passengers may be expelled. — In Illinois, the statute prohibits the expulsion 
 
 of a passenger at other than sonic usual stopping- place. 
 
 3. Measure of Damages for Unlawful Expulsion. — A passenger who, without any 
 
 difficulty, is put off from a train between stations for non-payment of fare, sustains a 
 technical injury, for which he may bring an action; yet where there is no improper 
 conduct on the part of the officers in charge of the train, nor any peculiar circum- 
 stances to justify it, a thousand dollars must be regarded as excessive damages for the 
 act. 
 
 Appeal from Kane. 
 
 Parks, who is an attorney, sued the appellant in case, averring that 
 the appellant was the owner of a railroad passing from Aurora in Kane 
 
 • Reported, 18 111. 460.
 
 320 REGULATIONS OF THE CAUUIER. 
 
 Chicago, Burlington, and Quincy Railroad Company v. Parks. 
 
 County, through Batavia, to Junction in Du Page County ; that he 
 took passage on board the cars of the company from Aurora to Junction 
 aforesaid, and was wrongfully expelled therefrom by the conductor of 
 the train. There were three counts in the declaration, npt matei'ially 
 variant ; the third count averred that Parks was expelled from the cars 
 at a place which was not one of the usual stopping-places of the trains 
 of the appellant's cars. To this declaration there was a plea of the 
 general issue, at February term, 1857, of the Kane Circuit Court, I. G. 
 Wilson, judge ; there was a trial by jury, and a verdict and judgment 
 for the plaintiff below for $1,000. 
 
 A motion for a new trial was denied. 
 
 Sedgwick and Walker, for appellant ; 0. D. Day, E. Leland, and W. 
 H. Wallace, for appellee. 
 
 Caton, J. — Several questions of considerable public importance arise 
 upon this record, and have been considered by this court. The rail- 
 road company has the right by its charter to fix the tariff or fare which 
 it shall receive for carrying passengers and freight upon its road. 
 These charges, however, must be uniform ; that is, the charge should 
 be the same for all persons similarly situated, and for all fx-eights of a 
 like kind and quality, for a given service. They may divide passengers 
 atfd freights into classes, with descriptive distinctions, and charge 
 different rates for different classes, for a given service, but the charge 
 should be uniform upon all persons and freights embraced within each 
 class. Thus may every one know what he has to pay, beforehand, for 
 passage or freight, by inspecting the table of classes and charges fixed 
 by the company. They may not say that they will cliarge A. twice as 
 much as they do the public in general. While they show favor to 
 individuals or classes, by carrying them free, or for half-price, if the}' 
 choose, they cannot be allowed to arbitrarily oppress an individual by 
 charging him an unusual price, simply because it is he. Also, tariffs 
 of charges may, under tbe same rule of uniformity, be changed at the 
 pleasure of the company. Nor do we think it unreasonable or unjust 
 that the company should charge more for passengers who neglect to get 
 tickets, and in consequence compel the conductor to collect their fares 
 in the cars. This is but a reasonable penalty for the neglect of the 
 passenger, and a just compensation to the company for the additional 
 inconvenience to which they are subjected by being compelled to receive 
 the fare by the hands of the conductor. That it is sensibly and appre- 
 ciably more to the advantage of the company to have their fares paid 
 to their station-agents, who issue tickets therefor, than to their conduc- 
 tors, our common observation has convinced us. But to justify the
 
 PUKCHAbE OF TICKET BEFORE ENTERING VEHICLE. 321 
 
 Supreme Court of Illinois. 
 
 compaii}' in making tliis discrimination in the fare against the passenger 
 who neglects to purchase a ticket at the company's office, the company 
 must see to it that the fault was not that of its own agent, instead o ' 
 the passenger. To justify this discrimination, every reasonable and 
 proper facility must be afforded the passenger to procure his ticket. 
 They must furnish a convenient and accessible place for the sale of the 
 tickets, with a competent person in attendance ready to sell them, which 
 should be open and accessible to all passengers, for a reasonable time 
 l)efore the departure of each train, and up to the time of its actual 
 departure, so that it shall really be a case of neglect, and not of neces- 
 sity, on the part of the passenger, and not the fault of the company. 
 If a company will keep its ticket-office closed till a crowd of clamorous 
 [)assengers have gathered around, so as to make it dangerous or incon- 
 venient for females or infirm persons to get tickets, surely the fault is 
 not theirs, but the company's, if they do not procure tickets ; and, under 
 such circumstances, to charge them more than the price established for 
 tickets would be but an imposition and an outrage which the law can- 
 not sanction. 
 
 We have been led to these suggestions upon the reasonable facilities 
 to be afforded to the passengers to procure tickets, not only from very 
 common complaints, which sometimes, no doubt, are well founded, that 
 agents too often delay opening their offices till too near the time for Ihe 
 departure, but the evidence in this case shows that the usual habit of 
 the agent at Batavia, the place where the passenger should have got his 
 ticket, was such as to have prevented the plaintiff from procuring a 
 ticket in this case. He swears that his rule was to keep his ticket-office 
 open till it was time for the train to arrive, and that he did not keep it 
 open till the departure of the train, unless he chose to, or if he had 
 any thing else to do. Had such been the case on the morning in ques- 
 tion, it would have been impossible for the plaintiff to have procured a 
 ticket, for he came in on the cars, and consequently could not well buj' 
 a ticket at the office before the arrival of the train. Had he gone to 
 the ticket-office and found it closed, we should not hesitate to say that 
 the fault was tlie ticket-agent's, and not his, and that, having done all 
 he could to procure a ticket, he was entitled to be transported at the 
 ticket fare. Otherwise, the company would be allowed to take advan- 
 tage of its own wrong or that of its servant, and make the party with- 
 out fault pay them for it. The evidence, however, in this case shows 
 that tlie ticket-office was open, and the agent ready to sell tickets dur- 
 ing the whole time the train was at the station ; so that it was the fault 
 of the plaintiff, and not of the company, that he did not procure a 
 
 21
 
 322 REGULATIOMS OF THE CAUIUEK. 
 
 Chicago, Burlington, and Quincy Railroad Company v. Parks. 
 
 ticket, if it was liis duty to procure one. This at once leads us to that 
 question, as arising out of the facts in this case. 
 
 It appears that the plaintiff took passage on the cars at Aurora, with- 
 out a ticket, and paid the conductor, when called on in the cars for his 
 fare, the regular price to Batavia, to which place he took and paid for 
 a passage. He paid the five cents more than the price of a ticket for 
 the same passage, according to the rules established by the company. 
 No complaint or remonstrance seems to have been made to the payment 
 of the five cents more than the price of a ticket for the passage to 
 Batavia, which was the destination for which he first started. While 
 the train remained at Batavia, the plaintiff concluded to go on to 
 Junction, which is the next station, and took passage for that point 
 without having obtained a ticket. After the train had started, the con- 
 ductor applied to the plaintiff for his fare, who tendered him twenty 
 cents, which was the price of a ticket ; but the conductor demanded of 
 him twenty-five cents, which was the price fixed by the rules of the 
 company for the fare from Batavia to Junction when it is paid to the 
 conductor. The plaintiff claimed that as he had already paid the extra 
 five cents on his passage from Aurora to Batavia, he was not bound to 
 pay an additional five cents on the route from Batavia to Junction, 
 while the conductor claimed he must pay the conductor's fare in both 
 cases. In this we have no doubt the conductor was right. At first the 
 plaintiff took passage for and paid his fare to Batavia. When that 
 journey was accomplished that contract was at an end, and all connec- 
 tion and responsibility between the parties, so far as the first payment, 
 or the contract growing out of it, was concerned. When the plaintiff 
 again got on to the cars at Batavia and started for Junction, a new 
 journey was commenced, as independent of the other, which had already 
 been fully performed, as if he had come over that part of the road the 
 day before, or even as if he had never been on the cars of the company 
 before. A new contract had to be made, as much as if another passen- 
 ger had got on at Batavia instead of the plaintiff. For the two 
 passages the conductor had to make two reports and separate entries, as 
 much as if the two journeys had been performed by two passengers. 
 The conductor, then, was right in demanding the regular fare estab- 
 lished by the rules of the company, and the plaintiff occupied the posi- 
 tion of one upon the cars refusing to pay the regular fare, which, by 
 taking his seat in the cars without a ticket, he had impliedly agreed to 
 pay. And the question then arises. What were the rights of the parties 
 under such circumstances ? What was it then the duty of the conductor 
 to do ?
 
 PURCHASE OF TICKET BEFORE ENTERING VEHICLE. 323 
 
 Supreme Court of Illinois. 
 
 These, we think, are definitely established by the thirty-fourth section 
 of the law providing for a general system of railroad incorporations, 
 which is this : — 
 
 "■ If any passenger shall refuse to pay his fare or toll, it shall be law- 
 ful for the conductor of the train and the servants of the corporation 
 to put him out of the cars at any usual stopping-place the conductor 
 shall select." 
 
 It is objected, first, that the company had the right to remove persons 
 from the cars who refuse to pay their fare, before the passage of this 
 law, and as this statute does not in terms forbid the putting out of such 
 a person at any convenient and safe place other than a usual stopping- 
 place, the right which is claimed formerly to have existed to put the 
 passenger out at other than the usual stopping-places still remains 
 unimpaired by the act. This we do not think a sound construction of 
 the act. It was the evident intention of the Legislature to regulate the 
 subject of which the section treats, without reference to the question 
 whether it abridges or enlarges previously existing rights. It means 
 this or it means nothing. Such, we have no doubt, is the sound con- 
 struction of the act. 
 
 It is next objected that as this company was incorporated, not under 
 this general law, but by special law passed long before, we ought not 
 to hold that it was the intention of the Legislature to make this section 
 applicable to it. This question of intention is settled by the last section 
 of the same act, which says : — 
 
 "All existing railroad corporations within this State shall respectively 
 have and possess all the powers and privileges, and be subject to all 
 the duties, liabilities, and provisions contained in this act, so far as they 
 shall be applicable to their present conditions, and not inconsistent with 
 their several charters." 
 
 This thirty-fourth section is certainly as applicable to one road as 
 another ; and if the Legislature had the right to impose such a regulation 
 upon companies already in existence, there can be no doubt that it 
 intended to do so. We held, in the case of The People v. Wilson,^ 
 that, under this last section, this very railroad company might claim a 
 benefit under this same act. And in the case of Galena and Chicago Union 
 Railroad Company v. Loomis,^ we held that the thirty-eighth section of 
 the same act was applicable to and binding upon that company. That 
 section requires each locomotive to be provided with a bell or whistle, 
 which shall be sounded at road-crossings. That company was incorpo- 
 
 1 17 TU. 167. » 13 111. 548.
 
 324 REGULATIONS OF THE CARRIER. 
 
 Chicago, Burlington, and Quincy Railroad Company v. Parks. 
 
 rated by a special law, before the passage of this general law, and hence 
 was situated, in that respect, the same as this company. There is 
 nothing in the charter of this company which says any thing about its 
 right to put passengers out of its cars for refusing to pay fare, but that 
 right is claimed as an incident to and as a means of enforcing the right 
 to collect fare, so that the regulation in question does not interfere with 
 any express grant of power contained in the charter. It does not 
 interfere with the right to collect toll from passengers, for they may 
 demand the toll of all persons before they allow them to take their seats 
 in the cars, or, after the service is performed, they may sue and recover 
 the fare of the passenger. But after the company has allowed the 
 passenger to take /his seat in the cars and started with him without 
 demanding the toll and without objection, it provides that he shall not 
 be thrust out except at a regular stopping-place. This was, no doubt, 
 deemed essential by the Legislature to the safety of the travelling public, 
 rather than leave it discretionary with every conductor to say arbitrarily 
 what is a safe and proper place to put the passenger off ; and when 
 we reflect that among the great multitude of conductors necessarily 
 employed throughout the State, with the utmost caution on the part of 
 the companies, it is almost inevitable that some will want discretion, while 
 others may be influenced by passion, or, worse still, an exaggerated 
 notion of their authority and a morbid ambition to display it, we 
 cannot say that the Legislature acted unwisely in prohibiting them alto- 
 gether from putting off passengers for the non-payment of fare, at 
 other than usual stopping-places. The case may, and, no doubt, often 
 will happen, that a person may very innocently and unintentionally find 
 himself without the means of paying his fare, — as, where the money he 
 has unexpectedly turns out to be uncurrent, or, when he looks for his 
 money to pay his fare, he finds he has been robbed. 
 
 I venture the assertion now, that if the conductors were to adhere 
 to the positive requirements of our statute which prohibits the receiv- 
 ing of bills of banks out of the State of less denomination than S5, 
 they would in every train find more or less persons of respectability 
 and character who had taken their seats without a doubt of their ability 
 to pay their fare, who were entirely unable to do so ; and yet, in refusing 
 to take such money, no one can doubt that the conductor would be exer- 
 cising a strict legal right, and, I may say, duty, for it is the dutj' of all to 
 obey that, as well as all other laws, so long as it remains in force. It 
 was impossible for the Legislature to distinguish between such cases and 
 those where the passenger fraudulently takes his seat and then refuses 
 to pay ; and rather than leave it to the discretion of the conductor, it
 
 PURCHASE OF TICKET BEFORE ENTERING VEHICLE. 325 
 
 Supreme Court of Illinois. 
 
 was deemed proper, for the protection of the travelling public from even 
 occasional abuse, to provide that passengers should only be put off 
 at usual stopping-places for refusal to pay the fare, for that is the 
 effect of the provision. 
 
 This is complained of in the argument as a hax'dship, and as prac- 
 tically compelling the company to carry all persons who take their seats 
 from one station to another ; for, ordinarily, the train could not be run 
 l)ack to the station where the passenger got on, without getting behind 
 time. Under the present system of allowing all persons to take their 
 seats in the cars without tickets and without paj-ing their fare, this may 
 be so, and such an effect is certainly to be regretted ; but it is not 
 impossible to obviate the difficulty by requiring prepayment, although 
 it may not be improbable that the introduction of such a system in this 
 country at the present time would be attended with great diflScuIties. 
 But, be this as it may, we cannot doubt the power of the Legislature to 
 pass the law in question, if they deemed the public safety required it. 
 The result is that, in this case, the conductor had a right to remove the 
 plaintiff from the cars because he refused to pay the fare which he was 
 authorized to demand ; but he was not authorized to put him off at the 
 place where he did, which was not a usual stopping-place, but from 
 forty rods to half a mile from the Batavia station. The statute made it 
 his duty either to run back to that station, or to take him on to the next. 
 Had he taken him on to Junction, which was the next station, the com- 
 pany would have had a right of action for the fare, which, however 
 inadequate in fact, would be all the relief the law could afford in such 
 a case, as well as in all others where services are rendered for which 
 the party refuses to pay the just compensation. 
 
 For putting the plaintiff off the train at a place not allowed by 
 law, a technical wrong was done him, for which he undoubtedly had 
 a rigiit to bring this action, and to recover such damages as he sus- 
 tained for the wrong done him. The jury allowed him $1,000 for 
 those damages, which the Circuit Court refused to set aside, and this 
 decision is also assigned for error. We cannot hesitate to say that the 
 damages allowed are grossly, not to say outrageously, excessive. Al- 
 though in a case of this kind this court will interfere with a verdict 
 with great reluctance, yet we will not hesitate to do so where it is 
 apparent, at first blush, that the jury have misapprehended the law of 
 the case, or misunderstood the facts, or else have been influenced by 
 their passions or their prejudices rather than the law and the facts. It 
 is not the duty of courts to enforce the arbitrary edicts of juries, but 
 it is their duty to firmly and fearlessly stand between the party and the
 
 326 REGULATIONS OF THE CARRIER. 
 
 Chicago, Burlington, and Quincy Railroad Company v. Parks. 
 
 .iiuy whenever it is manifest that the party has been made a victim to 
 their prejudices. In this class of cases great latitude should no doubt 
 be allowed to juries in their estimate of the damages, but to this there 
 must be a limit ; and should we refuse to interfere in this case, it would 
 be equivalent to saying to juries, in all cases of this kind, We will shut 
 our eyes to the facts of the case, and let you work your will with all 
 parties placed in your hands. Now, do with them as you please ; we 
 will not interfere. 
 
 What are the facts which the jury were bound to consider in estimat- 
 ing the amount of damages to which the plaintiff was entitled? The 
 plaintiff had refused to pay the fare, which it was his duty to pay, and 
 it became the right and the duty of the conductor to remove him from 
 the cars. This he did in as kind and courteous a manner as practicable, 
 without violence or harshness and without insult or contumely. The 
 refusal of the plaintiff to pay the fare was not a matter of necessity, 
 for a friend offered to pay the additional five cents, which he would not 
 allow to be done ; but he chose rather to vindicate what he no doubt 
 supposed was his right, in which, however, we have seen he was mis- 
 taken, for the controversy between him and the conductor was about the 
 five cents, and not about the place where he should be left. His refusal 
 to pay his fare was from his will, and not from want. He chose rather 
 to be put off the cars than to allow another to pay the disputed five cents, 
 which he was in law bound to pay. Thus, by his own illegal act. he 
 subjected himself to all the mortification consequent upon the transac- 
 tion, for the mortification consists in being removed from the cars, and 
 not in the place of removal. A sensitive mind would have been quite 
 as much pained had the train run back to the depot, and he had been 
 expelled in the presence of the by-standers as well as the passengers, 
 as to have the removal take place, say, eighty rods from the depot ; and 
 yet had the conductor done so, no wrong would have been done to the 
 plaintiff, and he would have had no cause to complain. Of what, then, 
 could he complain ? In what respects wei'e his rights violated ? In this 
 alone: that he was put off the cars, say, eighty rods from the depot, 
 instead of at the depot. He was entitled to recover whatever damages 
 which he sustained by being put off at that place instead of at the 
 depot. But it rained at tlie time, and he had to walk back in the wet. 
 There is no evidence that he took a cold, or in an}' way became indis- 
 posed in consequence ; but, on the contrary, the evidence shows that he 
 was found some few hours afterward at his place in court at Geneva, 
 some two or three miles from Batavia, so that there were no special dam- 
 ages resulting from that, more than the discomfort and inconvenience
 
 PURCHASE OF TICKET BEFORE ENTERING VEHICLE. 327 
 
 Supreme Court of lULaois. 
 
 of it. There is no evidence showing malice on the part of the com- 
 pany or the conductor. He performed his unpleasant task with evident 
 reluctance, and without ostentation or arrogance, or display of author- 
 ity ; and, so far from there being evidence of enmity between the 
 parties, the testimony would lead to the conclusion that a friendly 
 relation existed between them. 
 
 From the whole evidence in the case, we cannot avoid the conclusion 
 that each supposed he was right in the dispute about the amount of the 
 fare, and each chose to stake the consequences and take the responsi- 
 bility of acting upon his own judgment ; and it turns out that the 
 plaintiff was wrong and the conductor was right. Nor is there any 
 thing in the case to lead to the conclusion that the conductor put the 
 plaintiff off where he did, instead of at a usual stopping-place, for the 
 purpose of annoying him or discommoding him, when he knew that it 
 was his duty to take him to some regular stopping-place. No question 
 or controversy was made as to the place, but.the whole question between 
 them was as to the right. As a matter of law, it was no doubt the dut}' 
 of the conductor to have known of this statute, and to have obeyed it ; 
 but it does not follow that his ignorance and violation of it are evidence 
 of malice, for which smart-money or exemplary damages should be 
 inflicted upon the company. 
 
 Now, in view of all these circumstances, can any impartial and 
 unprejudiced mind for a moment tolerate the supposition that the 
 plaintiff was entitled to $1,000 damages, when by his own wrongful 
 act he had subjected himself to the liability of being expelled from 
 the cars rather than allow a friend to pay the fare for him, which it was 
 his duty to have paid, and the only real ground of complaint which he. 
 has is that he was put off a short distance from the depot instead of at 
 the depot? The very statement of the proposition is startling, and 
 carries conviction to the mind at once that the jur}' were led to find 
 their verdict, not from the facts alone, and the law as applicable to 
 those facts. It may be, and prolnibly is the case, that the jury sup- 
 posed that the conductor was wrong in the amount of his charge, and 
 that they viewed the plaintiff in the light of a sacrifice to principle, and 
 that he had been outraged when manfully resisting oppression and 
 wrong. Without some such considerations as these, we cannot suppose 
 that the jury honestly arrived at the verdict which they rendered. But 
 such a view of the case, we have seen, was not warranted by the law 
 and the facts. The mere supposition or belief of the plaintiff himself 
 that he was all in the right, and that he was submitting to wrong for the 
 sake of defending a principle, did not entitle him to that position when
 
 328 REGULATIONS OF THE CARRIER. 
 
 Dunn V. Grand Trunk Railway. 
 
 he, in fact, was in the wrong. The honesty of his purpose could not 
 put the other party in the wrong when he was, in truth, in the right. 
 
 This verdict cannot, upon principle, be sustained. To uphold it 
 would not only be doing a great wrong to the defendant in this par- 
 ticular case, but, as a precedent, would be doing an infinitely greatei 
 wrong to the community, who might suffer by it. 
 
 The judgment must be reversed and the case remanded, upon the 
 ground alone that the damages are excessive. 
 
 Judgment reversed. 
 
 4. PASSENGEES UPON FREIGHT-TRAINS NOT PRESUMED TO HAVE 
 KNOWLEDGE OF REGULATIONS FORBIDDING THEIR PRESENCE 
 THERE. 
 
 Dunn v. Grand Trunk Railway.* 
 
 Supreme Judicial Court of Maine, 1870. 
 
 Hon. John Appleton, LL.D., Chief Justice. 
 
 *' Jonas Cutting, LL.D.,t 
 
 " Edward Kent, LL.D., 
 
 '* Charles Walton,! 
 
 « Jonathan Dickerson, LL.D., [- Judges, 
 
 ** William G. Barrows, 
 
 " Charles Danforth,! 
 
 " RuFUS Tapley, 
 
 If a passenger enters the caboose-car of a freight-train, and when the train starts, with- 
 out being requested or directed to leave, remains there as a passenger, contrary to the 
 rules of the company, but with the knowledge of the conductor, who receives from 
 him the usual fare of a first-class passenger, the corporation incurs the sam6 liability 
 lor his safety as if he were in their regular passenger-train. 
 
 Action by Dunn against the Grand Trunk Railway Company, for 
 injuries received July, 1868, while riding on defendants' railroad. At 
 the time of the accident, plaintiff was riding in the saloon-car of a 
 freight- train. At the trial, it appeared that the company issued a notice. 
 May 23, 1866, that "passengers would not be allowed to travel by 
 freight-train on that part of the line between Portland and South Paris." 
 By notice September 8, 1868, the company made public the following 
 rule: That "no passenger will he carried in the brake-vans attached 
 to freight-trains without written authority from the superintendent. 
 
 * Reported, 58 Me. 187. t Not silting.
 
 PASSENGERS OX FREIGHT-TRAINS. 329 
 
 Supreme Judicial Court of Maine. 
 
 * * * Any conductor allowing a passenger to travel in the brake- 
 van, or on any part of the freight-lrain, will be dismissed." The paz't 
 of the road mentioned in the first notice was that whereon plaintiff was 
 travelling. The conductor made no objection, and collected fare as 
 from a first-class passenger. The verdict was for plaintiff, and defend- 
 ants appealed. 
 
 P. Barnes, for appellants ; ^ T. H. Haskell, for appellee. 
 
 Appleton, C. J. — The defendants are common carriers of passen- 
 gers and freight. They may carry freight in their passenger-train, or 
 passengers on their freight-train. They have a right to make all reason- 
 able rules and regulations in the management of their business, with 
 which those in their employ, or those making use of their means of con- 
 veyance, are bound to conform when informed of their existence. 
 
 By one of the regulations of the defendant corporation, after May 23, 
 1866, passengers were not "allowed to travel by freight- ti'ains on that 
 part of the line between Portland and South Paris." The regulation 
 was a reasonable one, and the defendants were authorized to make it. 
 It is, however, fairly inferable from the regulation itself that previously 
 passengers had been permitted to travel by the freight-train. By the 
 notice of September 8, 1868, dated at Montreal, no passengers were to 
 be carried in the brake-vans attached to freight- trains "without written 
 authority from the superintendent." And "any conductor allowing a 
 passenger to travel on the brake-van, or any part of the freight- train, 
 will be dismissed." 
 
 The plaintiff went aboard the freight- train, in the saloon-car, and was 
 there with the knowledge of the conductor. It was the duty of the 
 conductor to inform him of this regulation, if it was to be enforced, 
 and request him to leave. If no notice was given of this rule, and no 
 request to leave, but instead thereof the usual fare was received, he had 
 a right to suppose himself rightfully on board, and entitled to all the 
 rights of a passenger. Every one riding in a railroad car is, prima facie, 
 presumed to be there lawfully as a passenger, having paid, or being liable 
 when called on to pay, his fare, and the onus is upon the carrier to 
 prove aflarmatively that he was a trespasser.^ If not being rightfully 
 on board, and being advised thereof, the plaintiff neglected or refused 
 to leave, the conductor had a right to remove him, using no more force 
 than was necessary to accomplish that object.^. 
 
 1 Cited Lygo v. Newbold, 9 Exch. 302; Lu- 2 Pennsylvania R. Co. v. Books, 57 Pa. St. 
 
 cas V. Taunton etc. R. Co., 6 Gray, 70; Rob- 346. 
 
 ertson v. New York etc. R. Co., 22 I5arb 01 ; •■' Fulton v. Grand Trunk R. Co., 17 Upper 
 
 Cleveland etc. R. Co. v. Bartram, 11 Oliio St. Canada Q. B. 428; Ililliard v. Goold, 34 N. H 
 
 4.^7. • 230; The State v. Goold, 53 Me. 279.
 
 330 REGULATIONS OF THE CAllRIER. 
 
 Dunn V. Grand Trunk Eailway. 
 
 The regulations of the defendant corporation are binding on its ser- 
 vants. Passengers are not presumed to know them. Their knowledge 
 must be affirmatively proved. If the servants of the corporation, who 
 are bound to know its regulations, neglect or violate them, the principal 
 should bear the loss or injury arising from such neglect or violation, 
 rather than strangers. The corporation selects and appoints its ser- 
 vants, and it should be responsible for their conduct while in its employ-. 
 It alone has the right and the power of removal. 
 
 A passenger goes on board a freight-train, enters the saloon-car, 
 and remains there when the train starts, against the rules of the com- 
 pany but with the knowledge of the conductor, and is not directed or 
 requested to leave, but pays the usual fai-e of a first-class passenger to 
 such conductor, and is injured on his passage by the negligence or care- 
 lessness of the railroad corporation. Is he entitled to compensation for 
 such injury? If inert matter be injured or destroyed by the negligence 
 or carelessness of a common carrier, its owner can maintain an action 
 and recover damages as a recompense for such injury. Is the traveller 
 entitled to the protection of the law when the negligence of the carrier 
 destroys his goods, and without its protection when the same negligence 
 injures his health or breaks his limbs? If any extraordinary danger 
 arises from the violation of the known rules of the company, — as, by 
 -standing on the cars when in motion, — the passenger violating the 
 rules assumes the special risks resulting from such violation. But if 
 the act of the passenger in no wa}' conduces to the injury received, the 
 carrier must be held responsible for the necessary consequences of his 
 negligence or want of care.^ 
 
 In Zemp v. Wilmington, etc. Railroad Company,'^ there were two cars 
 on the train, and the plaintiff's seat was in the forward car. Near 
 the door on the inward car was a notice that passengers should not 
 stand on the platform. The train was running over an unfinished part 
 of the road. The cross-ties were too far apart, and were insufficiently 
 spiked, and the accident arose from " the breaking of the cleat at the 
 end of one of the rails." All the other passengers were inside the cars, 
 and none of them were injured. 
 
 The defence was that the injury arose from the plaintiff's own fault, 
 in standing upon the platform while the cars were in motion. The ver- 
 dict was for the plaintiff, which the court refused to set aside, holdint: 
 that whether the plaintiff had no notice that the platform was a prohib- 
 ited place, and if so, then whether under the circumstances his own act 
 so contributed to the injurj^ as to exonerate the railroad, who were 
 
 > Baker v. Portland, 58 Me. 199. s 9 Rich. T^. 84.
 
 PASSENGERS ON FREIGIIT-TKAINS. 331 
 
 Supreme Judicial Court of Maine. 
 
 guilt}' of negligence, were for the jury. The plaintiff's seat, " it will be 
 recollected," observes O'Neall, J., "was in the forward car; the 
 notice proved was in the rear car, on the platform on which he was 
 standing when the accident occurred. That such notice is not enough 
 to change the liability of the company to a passenger is, I think, clear 
 from Story on Bailment^ sect. 558. If the conductor had said to the 
 plaintiff, as was his duty, ' you are in an improper place,' and he had 
 then persisted in remaining, it might have been that this would have 
 excused the company from any consequences which might have fol- 
 lowed." An action was brought against a railroad company by a pas- 
 senger, while travelling in one of its gravel-trains. The defendant 
 asked the court to instruct the jury that a railroad company was not 
 liable for an injury which might happen to one taking passage in a 
 gravel-train, and not engaged in carrying passengers. This requested 
 instruction was held to be properly denied in Lawrenceburgh and Upper 
 Mississippi Railroad Company v. Montgomery ^^ the court holding that 
 in a suit brought against a railroad for an injury occasioned by a col- 
 lision, it was not sufficient for the company to show that the plaintiff 
 was acting at the time in disobedience of a proper order to secure his 
 safety, but that it should also appear that the injury was occasioned by 
 such disobedience. In Watson v. Northern Railway Company,"^ the 
 plaintiff, travelling in the defendant's train on a passenger-ticket, went 
 into the express company's compartment of a car. While there, owing 
 to the negUgence of the defendant's servants, the train, which was 
 stationary, was run into by another coming up behind it, and the 
 plaintiff's arm was broken. No person in the passenger-cars was 
 seriously injured. It was proved that notice that the passengers were 
 not allowed to ride in the baggage-car was usually posted upon the 
 inside of the door of the passeoger-cars, but it was not distinctly shown 
 that it was there on that day. The jury found that the plaintiff was 
 wrongfully in the car, but tha<; he was not told where to go when he 
 bought his ticket, nor did thq conductor order him out, and so he was 
 not to blame. "In my opinion," observes Draper, C. J., "the jury 
 were warranted in finding that the plaintiff did not so contribute (to the 
 injury) as to deprive him of the right to recover. Giving the fullest 
 weight to the considerations urged in the defence, such as the ticket 
 which the plaintiff had, the notices stated to have been kept up in the 
 cars, conceding the plaintiff saw them, though it is not proved, I do not 
 think they preclude the plaintiff from recovering, when the injury he 
 sustained was occasioned by collision resulting entirely and directly 
 
 1 7 Infl. 475. « 24 Upper Canada Q. B. 98.
 
 332 REGULATIONS OF THE CARRIER. 
 
 Duun V. Grand Trunk Kailway. 
 
 from the gross negligence of the defendants' servants." In O'Domiell 
 V. Allegheny Volley Railroad Company, ^ in a suit by an employee of 
 a raih'oad company, who held the relation of a passenger, the court 
 charged that the baggage-car is an improper place for a passenger to 
 ride ; whether the rule against it was communicated to him or not, if he 
 left his seat in a passenger-car and went into the baggage-car, it was 
 negligence which nothing less than a direction or an invitation of the 
 conductor could excuse ; and such invitation should not be inferred 
 from his having ridden there frequently with the knowledge of the con- 
 ductor, without his objection. Held, to be error. 
 
 That a railroad corporation cannot repudiate the acts of its agents so- 
 as to free themselves from responsibility for their negligence, was held 
 in Lackawanna and Bloomsburgli Railroad Company v. Chenewith,^ 
 where the agents of a railroad company, contrary to the instructions 
 and rules of the company, at the request of the owner of a freight- 
 car, attached it to a passenger- car, the plaintiff agreeing to run all risks ; 
 the plaintiff having sustained a loss by the negligence of the defendant, 
 brought his action for compensation. The same defence was attempted as 
 in the case at bar. The plaintiff was not a trespasser, "for," observes 
 Thompson, J., "he was there by permission, and under the contract of 
 parties competent to give him authority to be there. * * * When, 
 therefore, they (the defendants) consented to hitch on his (plaintiff's) 
 car to the passenger-train, even at his urgent solicitation, — and we have 
 not a particle of evidence that other inducements to do the act were 
 held out, excepting freedom from responsibility as a consequence of the 
 attachment, — we must presume it was done with a view to the compen- 
 sation to be paid on the one hand, and the usual care to be exercised 
 on the other. The argument, however, is that the plaintiff was guilty 
 of such a wrong in asking permission for his car to be attached, that, 
 whether the act contributed to the disaster or not, he is to be treated as 
 a trespasser, and not entitled to any compensation for injuries not wil- 
 fully done. We think this is not the law, unless in a case when the will 
 of an agent is controlled and subverted by improper influences, he is 
 induced to do that which is manifestly beyond the scope of his powers. 
 That there was a regulation against running freight-trains with passen- 
 ger-cars may be admitted, although it was not properly proved, yet that 
 neither proved that it might not be safely done, nor that if the company 
 undertook to do it they might lay aside the duty of care and commit 
 such cases to the guardianship of chance." 
 
 "When a railroad company admits passengers into a caboose-car 
 
 ' 59 Pa. St. 2.39. 2 52 Pa. St. 38S.
 
 PASSENGERS ON FREIGHT-TRAINS. 333 
 
 Supreme Judicial Court of Maine. 
 
 attached to a freight-train, to be transported as passengers, and takes 
 the customary fare for the same, it incurs the same liability for the 
 safety of the passengers as though they were in the regular passenger- 
 coaches at the time of the occurrence of the injury. ^ In Carroll v. Neiv 
 York and Neto Haven Railroad Company,^ the plaintiff, remarks Bos- 
 worth, J., "took a seat in the post-oflSce apartment of the baggage- 
 car. The position was injudiciously chosen, and may be assumed to 
 have been known to him to have been a far more dangerous one than a 
 seat in a passenger-car. He took it with the assent of the conductor. 
 He was not there as a trespasser, or wrongfully as between him and the 
 defendants. So far as all questions involved in the decision of this 
 action are concerned, he was lawfull}^ there." His being there was not 
 such negligence as would exonerate the defendants from the conse- 
 quences of their negligence or want of care. 
 
 The plaintiff was not entitled by law to be carried on the freight- 
 train contrary to the regulations of the defendant company. They 
 might have refused to carry him, and have used force to remove him 
 from the train. Not doing this, nor even requesting him to leave, but 
 suffering him to remain and receiving from him the ordinary fare, they 
 must be held justly responsible for negligence or want of care in his 
 transportation. 
 
 The question before the court was whether the defendants were liable 
 at all as common carriers. The defence was based entirely upon a reg- 
 ulation of the company. There was no question raised as to the general 
 obligations of carriers. Indeed, none is raised at the argument. The 
 counsel for defendants rest their defence on the rules of the company. 
 The plaintiff had paid the usual fare of a first-class passenger. The 
 defendants had received it, and had undertaken the transportation of 
 the plaintiff in their freight- train, during the course of which he was 
 injured by their neglect or want of care. Under such circumstances, 
 the judge said that they could not " plead their regulation in release of 
 their ordinary liabilities, but they were just as liable as if it had been a 
 passenger-train, and as if there had been no notice, provided plaintiff 
 was not guilty of any fault or want of ordinary care himself." 
 
 Undoubtedly a passenger taking a £i"eight-train takes it with the 
 increased risks and diminution of comfort incident thereto; and if it 
 is managed with the care requisite for such trains, it is all those who 
 embark in it have a right to demand. ^ "We have said in Chicago 
 and Galena Railroad Company \. Fay," '^ observes Breese, J., "that 
 
 J Edgerton v. New York etc. R. Co., 39 N. ' Chicago etc. R. Co. v. Hazzard, 26 111. 
 
 Y. 227. 2 1 Duer, 518. 373. * 16 111. 568.
 
 334 REGULATIONS OF THE CARRIER. 
 
 Dunn V. Grand Trunk Railway. 
 
 a passenger takes all the risks incident to the mode of travel, and the 
 character of the means of conveyance which he selects, the party fur- 
 nishing the conveyance being only required to adapt the proper care, 
 vigilance, and skill to that particular means ; for this, and this only, 
 was the defendant responsible. The passengers can only expect such 
 security as the mode of conveyance affords." 
 
 If there was any peculiar risk incident to transportation on a freight- 
 train, the counsel should have called the attention of the court to such 
 special difference, whatever it may be. But "the responsibility of a 
 railroad company for the safety of its passengers does not depend on 
 the kind of cars in which they are carried, or on the fact of payment of 
 fare by the passenger." ^ "The evidence," says Walker, J., in that 
 case, "shows that the road had been carrying passengers on their con- 
 struction-trains, and they must be held to the same degree of diligence 
 with that character of train as with their regular passenger-coaches, for 
 the safety of the persons and lives of their passengers." 
 
 If the defendants claimed that they might exercise a diminished 
 degree of caution arising from the character of the train, they should 
 have requested a corresponding instruction. 
 
 The cases to which our attention has been called, so far as we have 
 been enabled to examine them, are inapplicable. In Lygo v. Newhold^^ 
 the plaintiff contracted with the defendant to carry certain goods for 
 her in his cart. The defendant sent his servant with his cart, and the 
 Ijlaintiff, by the permission of the servant, but without the defendant's 
 authority, rode in the cart with her. On the way, the cart broke and 
 the plaintiff was thrown out and injured. Held, that as the defendant 
 had not contracted to carry plaintiff, and as she had ridden in the cart 
 without his authority, he was not liable for the personal injury she had 
 sustained. But in that case it does not appear that the defendant was a 
 common carrier, that he undertook to carry, or received or was to 
 receive any compensation for the carriage of the plaintiff. In Lucas v. 
 New Bedford and Taunton Railroad Company,^ it was held that a person 
 who enters the cars of a railroad corporation, not as a passenger, but 
 for the purpose of assisting an aged and infirm relative to take a seat 
 as a passenger, must, in order to maintain an action against the cor- 
 poration for an injury sustained while leaving the cars, show that he 
 exercised due care ; that the corporation was wanting in ordinary care, 
 and that such negligence was the cause of the injury; and if he 
 attempts to leave the cars after they have started, or, finding them 
 
 ' Ohio etc. R. Co. v. Muhling, 30 111. 9. « 9 Exch. 302. » 6 Gray, 65.
 
 POWER TO ESTABLISH REGULATIONS. 335 
 
 Whether Reasonableness of Regulation a Question of Law or Fact. 
 
 in motion as he is going out, persists in making progress to get out, 
 he cannot maintain such action if his attempt causes or contributes to 
 the injury, even if the corporation give him no special notice of the 
 time of departure of the cars, and are guilty of negligence in starting 
 the cars, and in a jerk occurring after the first start, which negligence 
 also contributes to the injury. But in that case the plaintiff was not a 
 passenger ; he was not there for the purpose of being transported. The 
 servants of the corporation could not know, and were not obliged to 
 know, the purpose for which he came aboard. Besides, the plaintiff 
 must show due care. The implication from the case is, that with due 
 care on the part of the plaintiff, and negligence on that of the corpora- 
 tion, the action was maintainable, and is adverse to the defendants. 
 
 Exceptions overruled, 
 Kent, Dickerson, Barrows, and Tapley, JJ., concurred. 
 
 NOTES. 
 
 § 1. Power of Carriers to establisli Regulations. — The general mle is that 
 carriers may establish reasonable regulations for the conduct of their business. 
 The validity of every regulation depends upon its reasonableness ; and by some 
 courts this is held to be a question of fact,' by others a mixed question of law 
 and fact,'' and by others a question of law.* Thus, it is said : " The reasonable- 
 ness of a rule or regulation is a mixed question of law and fact, to be found by 
 the jury on trial, under the instructions of the court. It may depend on a great 
 variety of circumstances, and may not improperly be said to be in itself a fact 
 to be deduced from other facts. It is not to be inferred from the rule or regula- 
 tion itself, but must be shown positively." * " There are strong reasons why the 
 reasonableness of railroad regulations should, in the absence of any positive 
 proof as to their effect, be submitted to the court as a question of law, rather 
 than to the jury as one of fact. Ordinarily, jurors are not aware, nor can they 
 readily be made aware, of all the reasons calling for the rule. They are apt to 
 listen readily to any allegations of injuries on railways. What one jury might 
 deem an inconvenient rule, another might approve as judicious and proper. 
 There would be no uniformity." ^ There is great force in this last utterance ; 
 but the current of authority seems to be that the question is a mixed one of law 
 and fact.* The most important of these regulations will now be discussed in 
 detail. 
 
 1 The State v. Overton, 24 N. J. L. 436. N. Y. 455, 459; Vedder v. Fellows, 20 N. Y. 
 
 2 Day V. Owen, ante, p. 306; Jencks v. 126. 
 
 Coleman, ante, p. 11 ; Du Laurans v. St. < Per Manning, J., Day v. Owen, 6 Mich. 
 
 Paul etc. R. Co., 15 Minn. 49; Bass v. Chicago 620, 527 ; ante, p. 306. 
 
 etc. R. Co., ante, p. 311. ^ Per Strong, J., Vedder v. Fellows, 20 N. 
 
 » Hibbard v. New York etc. R. Co., 15 Y. 120, 131. « 1 Redf. on Rye. 95.
 
 336 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 § 2. Regxilations as to Exhibition and Delivery of Tickets. — The carrier has 
 
 the right to make reasonable regulations requiring passengers to exhibit and 
 deliver up their tickets to his agent or servant. The circumstances of the case 
 make such a rule imperatively necessary. The number of persons carried, for 
 example, in railway coaches, the great variety of tickets used, the frequency of 
 stations upon the line, the fact that passengers go over many connecting lines 
 upon a single journey and that each line must have a certain portion of the 
 ticket in order to demand compensation from the office which issued the ticket, — 
 all these circumstances concur to demonstrate that any serious restriction laid 
 upon the carrier's power in this respect would result in frequent loss, or need- 
 lessly enhance the difficulty of obtaining compensation for carriage. The pas- 
 senger who refuses to comply with such a regulation forfeits his right to further 
 carriage, and may be ejected from the train by the servants of the railway com- 
 pany, of course without unnecessary violence. ^ 
 
 Regulations of this kind ought not to be condemned unless they are palpably 
 unjust.^ It is uot unreasonable to demand of the passenger the surrender of his 
 ticket in exchange for a conductor's check.' But a passenger ought not to be 
 <;ompelled to give up his ticket without such a check in return, at a considerable 
 distance from his destination, when there are intervening stations at which the 
 train stops.* A passenger has no right, however, to demand a conductor's check 
 in exchange for his ticket after the train has left the station immediately pre- 
 ceding that to which his ticket entitles him to be carried.^ Persons holding 
 commutation or season tickets may be required to exhibit them whenever 
 requested, and on refusal to do so may be compelled to pay the regular fare as 
 transient passengers, without liability on the part of the company to repay the 
 same.^ And on refusal to pay the regular fare, the commuter may be ejected 
 from the train at the next station.' But if the conductor of the train knows 
 that a person unable to produce his ticket is a commuter, and that his ticket 
 has not expired, he must act reasonably under the circumstances. K the pas- 
 senger assures him that he has the ticket, but has mislaid it, he must be allowed 
 to ride as long as there is any reasonable expectation of finding it. Although 
 such passenger had signed a receipt by which he agreed to show his ticket 
 to the conductor in the same manner as other passengers, when required, yet, 
 in the absence of an express stipulation in the contract that the plaintiff should 
 pay his fare unless the ticket should be produced, his failure to produce the 
 ticket was not such a breach of the contract as to justify the defendants in 
 rescinding it, and treating the plaintiff as a trespasser on the train.^ 
 
 1 The People v. Caryl, 3 Park. Cr.Ca8.326; Pittsburgh etc. R. Co. v. Hennlgh, 39 Ind. 
 
 Baltimore etc. R. Co. v. Blocher, 27 Md.277; 609. 
 
 Loring v. Aborn, 4 Cush. 608 ; The State v. 5 Illinois etc. R. Co. v. Whitemore, 43 111. 
 
 Campbell, 32 N. J. L. 309; Hibbard v. New 420. 
 
 York etc. R. Co., 15 N. T. 455. But If the « Bennett v. Railroad Oo„ 7 PhUa. 11; 
 
 conductor knows that the passenger has Ripley v. New Jersey etc. Transp. Co., 31 N. 
 
 paid his fare, he has no right to expel him J. L. 388; Woodard v. Eastern Counties R. 
 
 from the car although he refuses to exhibit Co., 30 L. J. (M. C.) 196. 
 his ticket. Ibid., per Comstock, J. ■ Downs v. New York etc. R. Co., 36 Conn. 
 
 * Vedder v. Fellows, 20 N. Y. 126. 287. 
 
 s Northern R. Co. v. Page, 22 Barb. 130. 8 Maples v. New York etc. R. Co., 38 Conn. 
 
 ♦ The State v. Thompson, 20 N. H. 251; 557.
 
 EXHIBITION AND DELIVERY OE TICKETS. 337 
 
 Forfeiture under English Statute. 
 
 In England it is provided by statute, i that, *' If any person travel, or attempt to 
 travel, in any carriage of the company, or of any other company or party using 
 the railway, without having previously paid his fare, and with intent to avoid 
 payment thereof ; or if any person, having paid his fare for a certain distance, 
 knowingly and wilfully proceed in any such carriage beyond such distance 
 without previously paying the additional fare for the additional distance, and 
 with intent to avoid payment thereof; or if any person knowingly and wilfully 
 refuse or neglect, on arriving at the point to which he has paid his fare, to quit 
 such carriage, every such person shall for every such offence forfeit to the 
 company a sum not exceeding fortj^ shillings." By the same statute it is pro- 
 vided i^ "For better enforcing the observance of all or any of such regulations, 
 it shall be lawful for the company, subject, etc., to make by-laws, * * * 
 provided that such by-laws be not repugnant to the laws of that part of the 
 United Kingdom where the same are to have effect, or to the provisions of this 
 or the special act, * * * and any person offending against any such by-laws 
 shall forfeit for every such offence any sum not exceeding £5, to be imposed by 
 the company in such by-laws as a penalty for any such offence." * * ♦ 
 Under § 103 of the foregoing provisions it is held that fi-audulent intention is 
 the gist of the offence of travelling without having paid the fare,' and the fact 
 that a person rode beyond the station for which he had purchased a ticket, but 
 on getting out of the train tendered the full local fare charged by the company 
 for this extra distance, after delivering up his ticket, was no evidence of an 
 intention to defraud the company.* 
 
 Under § 103, by-laws are frequently made requiring a passenger not pro- 
 ducing or delivering up his ticket to pay his fare from the place from which the 
 train originally started, or in default thereof forfeit a sum not exceeding forty 
 shillings. In Chilton v. London, etc. Bailway Company,'' a by-law of this 
 description, made under the provisions of an act incorporating the railway 
 company, similar in effect to the provisions above set out from the Companies 
 Clauses Consolidation Act, was held not to impose a penalty, and therefore 
 justify the arrest and imprisonment of a passenger committing a breach of it, in 
 accordance with other provisions for the enforcement of penalties in the act in- 
 corporating the company .6 But the contrary has been intimated in a late case.' 
 In London, etc. Haihoay Company v. Watson,^ the express ground of the decision 
 of the Court of Appeal was that such a by-law did impose a penalty, recoverable 
 only before justices, according to the provisions of the act,** and not as a debt 
 in a court of civil jurisdiction. 
 
 §3. Passenger riding without Ticket, or without a Proper Ticket. — As 
 between the conductor and the passenger, the ticket purchased by the latter 
 of the proper officer of the carrier is the only evidence of the right of the 
 
 'Companies Clauses Consolidation Act, * Dearden v. Townsend, swpra. 
 
 8 Vict., c. 20, § 103. "- Ibid., § 109. 6 is Mee. & W. 212. 
 
 ' Dearden v. Townsend, L. R. 1 Q. B. 10; « See also Ban- v. Midland R. Co., Irish 
 
 Bcntham v. Hoyle, i Q. B. Div. 289; London Rep. 1 C. L. 130. 
 
 etc. R. Co. V. Watson, 3 C. P. Div. 42); s. c. i ' Brown v. Great Eastern R. Co., 2 Q. B. 
 
 C. P. Div. 118. See also Regina v. Frere, 4 El, Div. 406. 
 
 & Bl. 598; McCarthy v. Dublin etc. R. Co., 8 4 c. P. Div. 118; s. c. 3 C. P. Div. 439. 
 
 Irish Rep. 3 C. L. 511. § 145.
 
 338 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 passenger to travel. The conductor cannot be expected to accept explanations 
 of the passenger in regard to an improper ticket which he produces, or when he 
 fails to produce any ticket whatever. ^ A passenger wlio has mislaid his ticket 
 is entitled to a reasonable length of time in which to search for it. He is not 
 obliged to have his ticket ready in hand the moment the conductor may demand 
 that it shall be exhibited.^ The loss of a ticket is very properly held to fall 
 upon the passenger. Any other rule would be a source of endless fraud upon 
 the carrier and intolerable delay to the public. "It is better and more reason- 
 able that a passenger should now and then have to suffer the consequences of 
 his own want of care, than that a system should be rendered impracticable which 
 seems necessary to the transaction of this important branch of business. 
 * * * The public, whether wisely or not, desire to travel at the rate of four 
 or five hundred miles a day, and that rapidity of movement cannot be accom- 
 plished without peculiar arrangements to suit the exigency, which must some- 
 times be found to produce inconvenience."^ It is the duty of the passenger, in 
 case he has lost or mislaid his ticket, or the ticket which he happens to hold 
 does not entitle him to proceed further, although he may have paid the price of 
 a ticket to a station further on, to pay the fare demanded, and if the company 
 afterwards refuses to make suitable reparation for the indignity to which he has 
 been exposed in being compelled to repay his fare, he can maintain his action 
 against it.* But the circumstances may be such that satisfactory evidence can 
 be given to account for the failure to produce the customary ticket, in which 
 case the conductor is not justified in following out his instructions literally and 
 in disregard of such evidence ; as, where the plaintiff purchased a ticket for a 
 berth in a sleeping-car, which he exhibited to the porter, who showed him his 
 berth, which the plaintiff made preparations to occupy, and afterwards the ticket 
 was demanded by the conductor of the car. The ticket could not be found, 
 having been lost in the meantime by the passenger. The train had not yet left 
 the station where the ticket was purchased, and the plaintiff procured from the 
 defendant's agent a writing certifying that he had paid for the lierth he was 
 occupying. The conductor refused to accept this or any explanations in lieu of 
 the ticket, and he was accordingly ejected from the sleeping-car. It was held 
 that he was entitled to recover the price paid for his ticket, and reasonable com- 
 jiensation for the trouble and inconvenience occasioned by being deprived of his 
 berth in the sleeping-car .» 
 The fact that one of the defendant's conductors has wrongfully taken a pas- 
 
 1 Townsend v. New York etc. R. Co., 56 N. » Robinson, C. J., in Duke v. Great West- 
 T. 295 (but see s. c. i Hun, 217; 6 Thomp. & em R. Co., 14 Upper Canada Q. B. 377, 384; 
 C. 49.5) ; Frederick v. Marquette etc. R. Co., s. c. id. 369. 
 
 37 Mich. 342; s. c. 6 Reporter, 116; Shelton v. < Chicago etc. R. Co. v. Griffin, and Fred- 
 Lake Shore etc. R. Co., 29 Ohio St. 214; Pull- erick v. Marquette etc. R. Co., mpra. 
 man Palace -Car Co. v. Reed, 75 111. 125; * Pullman Palace-Car Co. v. Reed, 75 111. 
 Weaver t;. Rome etc. R. Co., 3 Thouip. & C. 125. An informal writing by the ticket- 
 270; Jerome v. Smith, 48 Vt. 230; Downs v. agent to the effect that a passenger has paid 
 New Haven etc. R. Co., 36 Conn. 287; Chi- his fare, becomes a ticket as good as the 
 cago etc. R. Co. t;. Griffin, 68 III. 499. But see printed one usually sold. St. Louis etc. R. 
 Hamilton v. Third Avenue R. Co., 53 N. Y. 25. Co. v. Dalby, 19 111. 353, 365, per Caton, C. J. 
 
 2 Curtis V. Grand Trunk R. Co., 12 Upper See also Toledo etc. R. Co. v. McDonough, 
 Canada C. P. 89 ; Maples v. New York etc. R. 53 Ind. 289. 
 
 Co., 38 Conn. 557.
 
 EXHIBITION AND DELIVERY OF TICKETS. 
 
 33i) 
 
 Passenger riding without Proper Ticket. 
 
 senger's ticket from him does not justify him in getting upon another train of 
 the defendant's, with the intention of riding without paying his fare. The con- 
 ductor may properly expel such a passenger from his train.' Likewise, a 
 passenger may be compelled to pay his fare who has in his possession a coupon 
 ticket which entitles him to ride the distances indicated by the coupons 
 respectively, but who has lost a conductor's check which had been given him in 
 exchange for one of his coupons. In such a case, the ticket with the coupons 
 remaining attached, entitling him to ride from some point further on to his 
 destination, is no evidence to the conductor of his right to ride upon that section 
 of the road covered by the coupon detached by the conductor previously having 
 charge of the train.^ If the passenger has paid for three tickets for himself and 
 companions, and received only two, the production of these two, with an expla- 
 nation as to the failure to procure the third, cannot excuse the payment of fare 
 demanded.^ A railroad company is under no obligation to carry persons for less 
 than the usual rates. If it chooses to do so, the passenger must comply with 
 the regulations made in such cases, — viz., show a permission from the proper 
 officer to travel. If this is not done, a person so travelling may be ejected from 
 the train.* 
 
 A lunatic, unknowTi to the servants of the carrier as such, and carelessly left 
 in his seat alone by the person having him and his ticket in charge, may be right- 
 fully expelled from the train, although he does not understand the demand made 
 upon him for the payment of his fare.^ 
 
 1 Shelton v. Lake Shore etc. R. Co., 29 Ohio 
 St. 214 ; Townsend v. New York etc. R. Co., 56 
 N. Y. 295. If a passenger has received a 
 conductor's check in exchange for his ticket, 
 and gets upon another train by the direction 
 of the company's servant, and on the assur- 
 ance of the conductor that such check will 
 be received upon the other train, the com- 
 pany will be responsible for the act of the 
 conductor in refusing to recognize such 
 check and expelling the passenger from the 
 train. Toledo etc. R. Co. «;.'McDonough, 53 
 Ind. 289. 
 
 2 Jerome v. Smith, 48 Vt. 230. See also 
 O'Brien v. Boston etc. R. Co., ante, p. 22. 
 If there is no special contract to vary the 
 terms of a railroad ticket, it must be used 
 as those terms direct, — e.g'., a ticket with the 
 words " Portland to Boston " imprinted on 
 it, purchased in Portland, does not entitle 
 the holder to a passage in a direction the 
 reverse of that indicated on the ticket. 
 Keeley v. Boston etc. R. Co.,G7 Me. 163; s. c. 
 6 Cent. L. J. 382; 17 Alb. L. J. 366; Coleman 
 V. New York etc. R. Co., 106 Mass. 160. 
 Where an additional and more circuitous 
 route exists between two points on the 
 main line of a railroad, a passenger liokiing 
 a through ticket cannot, as a matter of right, 
 leave the train on the main line at one of 
 these points and demand transportation to 
 
 the other point over the circuitous route 
 without paying additional fare. The com- 
 pany is bound only to carry the passenger 
 over the through and most direct route. 
 Especially is this so, when the rate per mile 
 to be charged for tickets is fixed by statute, 
 and the price of the ticket, as in this case, 
 was for the number of miles travel on the 
 most direct line between the two points. 
 Bennett v. New York etc. R. Co., 69 N. Y. 
 594; s. c. 5 Hun, 599. See also Adwin v. New 
 York etc. R. Co., 60 Barb. 590. 
 
 3 Weaver v. Rome etc. R. Co., 3 Thomp. & 
 0. 470. 
 
 ■• Goetz V. Hannibal etc. R. Co., 50 Mo. 472. 
 
 6 Willetts V. Buffalo etc. R. Co., 14 Barb. 
 585. In Jennings v. Great Northern R. Co., 
 L. R. 1 Q. B. 7, the plaintiff took tickets 
 for himself, his servants, and horses by a 
 particular train on the defendants' railway. 
 The train was afterwards divided into two. 
 The plaintiff travelled in the first part of the 
 train, taking all the tickets with him. When 
 the second train, with the ,-ervants and 
 horses, was about to start, the plaintiff's 
 servants were required to produce their 
 tickets, and on their being unable to do eo, 
 the defendants refused to cany tliem. A 
 by-law of the defendants provided that "No 
 passenger will be allowed to enter any car- 
 riage without having first paid his fare and
 
 340 
 
 REGULATIONS OF THE CAKKIER. 
 
 Notes. 
 
 § 4. Refusal to pay Fare. — A wilful refusal to pay the proper fare demand- 
 able justities expulsion from the train. The railroad company is under no 
 obligation to transport a trespasser, and he may be expelled at any time, pro- 
 vided the manner and place of expulsion are such that the act will not result 
 in wanton injury.^ It is important to observe the distinction between passen- 
 gers who may honestly differ with the company's agents in regard to their rights, 
 and therefore refuse to submit to exactions of fare in addition to that already 
 paid, and persons who board the train, or remain upon it after their ticket is 
 exhausted, with the intention of defrauding the company or resisting demands 
 for payment of fare. It would seem that trespassers are not *' passengers " 
 contemplated by statutes which forbid the expulsion of passengers at other than 
 regular stations.'^ But this distinction is not always observed.^ 
 
 After a person has refused to pay his fare, and is being put off the train, he 
 acquires no right to passage by then tendering the fare demanded.* In such a 
 case, if put off at a regular station, he must there obtain a ticket and tender his 
 fare.* 
 
 Where the rates of fare fixed by the company were higher than allowed by 
 law, and the plaintiff entered the cars and tendered the legal fare for the pur- 
 pose, as he afterwards declared, of making money by suit against the company 
 for expulsion in consequence of refusal to pay the rate fixed by the company, 
 having been so expelled, it was held that he was entitled only to compensatory 
 
 obtained a ticket. Each passenger, on pay- 
 ment of his fare, will be furnished with a 
 ticket, which such passenger is to show 
 when required, and to deliver up before 
 leaving the company's premises, upon de- 
 mand." It was held, in an action by the 
 plaintiff for not cariying his servants, that 
 as the defendants contracted with the 
 plaintiff, and delivered the tickets to him, 
 and not to the servants, they were not in a 
 position to enforce the by-law. 
 
 1 Great Western R. Co. v. Miller, 19 Mich. 
 305; Haley v. Chicago etc. R. Co., 21 Iowa, 
 15; Chicago etc. R. Co. v. Boger, 1 Bradw. 
 472; Lillis v. St. Louis etc. R. Co., &4 Mo. 46-t; 
 Ohio etc. R. Co. v. Muhling, 30 111. 9; O'Brien 
 V. Boston etc. E. Co., 15 Gray, 20; s. c. ante, 
 p. 22. 
 
 * Lillis V. St. Louis etc. R. Co., and Chi- 
 cago etc. R. Co. V. Boger, supra; The People 
 V. JUlson, 3 Park. Cr. Cas. 2:J4. 
 
 * Chicago etc. R. Co. v. Peacock, 48 lU. 
 253; Fulton v. Grand Trunk R. Co., 17 Upper 
 Canada Q. B. 428. 
 
 * The People v. Jillson, 3 Park. Cr. Cas. 
 2:54: O'Brien v. Boston etc. R. Co., ante, p. 
 22; The State v. Campbell, 32 N. J. L. 309; 
 Nelson v. Long Island etc. R. Co., 7 Hun, 
 140; Stone v. Chicago etc. R. Co., 47 Iowa, 
 82; ». c. 10 Ch. Leg. N. 73; 6 Reporter, 489; 
 Hoffbauer v. D. &N. R. Co., 20 Alb. L. J. 474; 
 Fulton V. Grand Trunk R. Co., 17 Upper 
 
 Canada Q. B. 428; Hibbard v. New York etc. 
 R. Co., 15 N. Y. 455, 462, per Denio, C. J. 
 
 5 Nelson v. Long Island R. Co., supra. In 
 The State v. Campbell, supra, the passenger 
 had in his possession a spent ticket and a 
 regular ticket. He insisted on the right of 
 passage on the spent ticket, and exhibited 
 no other. Having been ejected from the 
 train after considerable delay and diffi- 
 culty, he produced the regular ticket, and 
 demanded that he be carried upon it, which 
 demand was refused. The court held that 
 his tortious refusal to produce this ticket 
 before his expulsion was a breach of the 
 contract, saying: "A passenger takes his 
 ticket subject to the reasonable regulations 
 of the company; it is an implied condition 
 in his contract that he will submit to such 
 regulations; and if he wilfully refuses to be 
 bound by them, by so doing he repudiates 
 his contract, and after such repudiation can- 
 not claim any right under it." It was re- 
 solved in Stone v. Chicago etc. R. Co., supra, 
 that where a passenger has been ejected 
 from a train for non-payment of fare, he 
 must pay the fare from the station where he 
 first entered the train, before he can insist 
 on being carried forward upon the same 
 train ; and if he purchase a ticket at the 
 point where he was ejected, the conductor 
 may nevertheless exclude him from the 
 train.
 
 PAYMENT OF FARE. 341 
 
 Discrimination in Price of Ticliets. 
 
 damages, and for tlie purpose of mitigating the damages his subsequent declar- 
 ations as to his object in entering the train were admissible in evidence. ' When 
 upon a steamboat no collection of fares is made until the landing is reached, a 
 person attempting to leave the boat without producing a ticket may be detained 
 a reasonable length of time, in order that the officers of the boat may investi- 
 gate statements explanatory of his failure to produce the ticket.^ 
 
 § 5. Discrimination in Price of Tickets purchased at the Company's OflBce 
 and Fare paid on the Train, — In some cases, the right of the railroad company 
 to charge an extra price for carriage of those passengers who pay their fare 
 upon the train is guaranteed by statute.^ In general, it is held that a regulation 
 of this kind, in the absence of any statute controlling the matter, is reasonable.* 
 The Supreme Court of Maine, speaking of such a regulation, say: "It is 
 important to promote and secure safety by allowiug time to the conductor to 
 attend to his proper duties on the train, and which would be often seriously 
 interfered with if his time was taken up in collecting fares, exchanging money, 
 and answering questions. It is highly important as a check against mistakes 
 or fraud on the part of the conductors, and as a guard against imposition by 
 those seeking a passage from one station to another without payment."^ 
 
 But if a railroad company chooses to make a regulation of this character, a 
 corresponding duty would seem to devolve upon it of providing those seeking 
 passage with all the conveniences necessary for the purchase of tickets.® "To 
 justify this discrimination, every reasonable and proper facility must be afforded 
 the passenger to procure his ticket. They must furnish a convenient and acces- 
 sible place for the sale of the tickets, with a competent person in attendance 
 ready to sell them, which should be open and accessible to all passengers for a 
 reasonable time before the departure of each train and up to the time of its 
 actual departure, so that it shall really be a case of neglect, and not of necessity, 
 on the part of the passenger, and not the fault of the company. If a company 
 will keep its ticket-office closed till a crowd of clamorous passeugers have 
 gathered around, so as to mate it dangerous or inconvenient for females or 
 infirm persons to get tickets, surely the fault is not theirs, but the company's, 
 if they do not procui-e the tickets ; and, under such circumstances, to charge 
 them more than the price established for tickets would be but an imposition and 
 an outrage which the law cannot sanction."' In a later case, this same court 
 
 1 Cincinnati etc. R. Co. v. Cole, 29 Ohio St. etc.-R.Co., 15 Minn. 49; Indianapolis etc. R. 
 126. Co. V. Rinard, 46 Ind. 293; Jefltersonville etc. 
 
 2 Standish v. Narragansett Steamboat Co., R. Co. v. Rogers, 38 Ind. 116; s. c. 28Ind. 1; 
 111 Mass. 512. Hilliard v. Goold, 34 N. II. 230; The People 
 
 3 Laws N. Y. 1857, p. 488, Chap. 228; Code v. Jillson, 3 Park. Cr. Cas. 234. 
 
 Ala. 1876, § 1698; Laws Iowa 1874, p. 61, § 2; « The State v. Goold, 53 Me. 279, 281. 
 
 Rev. N. J. 1877, p. 944, § 164; Nellis v. New » Chicago etc. R. Co. v. Parks, ante, p. 319; 
 
 York etc. R. Co., SON. Y. 505. St. Louis etc. R. Co. v. Dalby, 19 111. 352; 
 
 * Chicago etc. R. Co. v. Parks, ante, p. 319; Chicago etc. R. Co. v. Flagg, 43 111. 364; I)u 
 
 St. Louis etc. R. Co. V. Dalby, 19 111. .353; Laurans w. St. Paul etc. R. Co., 15 Minn. 40; 
 
 Stephen v. Smith, 29 Vt. 160; St. Louis etc. Jcffersonville etc. R. Co. v. Rogers, 38 Ind. 
 
 R. Co. V. SouHi, 43 111. 176; Crocker v. New IK!; s r. 28 Ind. 1; Indianapolis etc. R. Co. 
 
 London etc. R. Co., 24 Conn. 249; Porter v. v. Rinard, 46 Ind. 293. 
 
 New York etc. R. Co. ,.34 Barb. 353 ; Bordeaux ' Per Cnton, J., in Chicago etc. R. Co. v, 
 
 V.Erie R. Co., 8 Hun, 579; The State v. Parks, 18 111. 460, 465 ; s. c. a/t<e, p. 319. 
 C'hovin, 7 Iowa, 204; Du Laurans v. St. Paul
 
 342 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 saw fit to explain its former opinion in one particular, namely, that the court, in 
 speaking of the time of the actual departure of a train, up to which the ticket- 
 office must be kept open, must be understood as referring to the published fixed 
 time which everj'body knew. If a person saw fit to apply at the ticket-office 
 after the published time for the departure of a train, he could not demand the 
 same rights and privileges as those who came at the proper time for their tickets. 
 Any other rule would oblige the railroad company, in case its trains were delayed, 
 to keep a person stationed in its office until the train delayed might arrive.' 
 
 Elsewhere it is held that as a railroad company is under no obligation to estab- 
 lish offices for the sale of its tickets,^ and as a company may establish one rate of 
 fare when paid upon its trains and another when paid at its offices, it follows 
 that when the office of the company is closed, the rate upon the train is the only 
 one in existence.^ 
 
 It is provided by statute in New York, that " any railroad company which shall 
 ask and receive a greater rate of fare than that allowed by law shall forfeit f 50, 
 which sum may be recovered, together with the excess so received, by the party 
 paying the same," etc.* By a statute passed the same year, it is provided that 
 the New York Central Eailroad Company, " at every station on its road where a 
 ticket-office is now or may hereafter be established, shall keep the same open for 
 the sale of tickets at least one hour prior to the departure of each passenger- 
 train from such station."^ The right to charge persons paying their fare upon 
 the train five cents extra is also guaranteed by this statute.^ In a case arising 
 under these provisions, the facts were that the plaintiff was in the neighborhood 
 of the ticket-office and had ample opportunity to procure his ticket before the 
 arrival of the train. He waited, however, until he heard the whistle of the 
 engine of the approaching train, and then went to the office to procure his 
 ticket. The ticket-agent was absent, but came in from the train, without the 
 key to the ticket-drawer, which had been taken off by a person iu charge of 
 the office on the approach of the train. The train was behind time, but the 
 office had been kept open up to the published time of the departure of the train. 
 The passenger having been compelled to pay the five cents extra, the usual fare, 
 brought an action for the statutory penalty. The court held that the company 
 was required to keep its ticket-office open until the actual departure of the 
 train ; and if they closed it prior to that time, passengers afterwards applying 
 for tickets could not be charged the additional fare ; furthermore, that if the 
 company have nobody at the office to furnish a ticket, it is not open within the 
 meaning of the statute.' 
 
 1 St. Louis etc. R. Co. v. South, 43 111. 176. peals in an earlier case: " To compel a pas- 
 But see Porter v. New York etc. R. Co., 34 senger to pay a penalty because tlie com- 
 Barb. 353. pany had deprived him of the power to 
 
 2 Nellis V. New York etc. R. Co., 30 N. Y. travel for the regular fare, would be so op- 
 •''05. pressive and unjust that it would require a 
 
 3 Crocker v. New London etc. R. Co., 34 positive provision of a legislative act to in- 
 Conn. 249. But it is gratifying to observe duce any tribunal to sanction it." Nellis v. 
 that this decision was by a divided court, and New York etc. R. Co., 30 N. Y. 505, 510. See 
 has not been generally assented to. DuLaur- also Illinois etc. R. Co. v. Sutton, 42 111.438. 
 ana v. St. Paul etc. R. Co., 15 Minn. 49. It * LawsN. Y. 1857, p. 432, chap. 1S5. 
 
 has, however, received sanction in a late ^ j(i__ ^gs, chap. 228, § 1. 
 
 case of tlie Supreme Court of New York. « Id. § 2. 
 
 r,ordeaux v. Erie K. Co., 8 Hun, 579. But ■ Porter v. New.York etc. R. Co., 34 Barb. 
 
 contra is the language of the Court of Ap- 353.
 
 PAYMENT OF FARE. 343 
 
 Transportation upon Freight-trains. 
 
 By the same statute it is provided that the New York Central Railroad Com- 
 pany shall not be required to keep their ticket-offices open, except at Utica and 
 six other places, between the hours of nine o'clock p. m. and five o'clock a. m. 
 A passenger applied at the Utica office at about one o'clock a. m., and found it 
 closed, and thereupon took his seat in the cars. The extra five cents was de- 
 manded and paid. In an action for this excess and the statutory penalty, the 
 court held that the extra fare could only be demanded when the passenger 
 failed to purchase his ticket at an established office which was open.' A.person 
 who has properly applied for a ticket, and is unable to procure one from any cause 
 attributable to the company or its agents, is entitled to be carried at the ticket 
 rate. He has the choice of paying the excess demanded of him or of insisting 
 upon his right to be thus carried, and of holding the company responsible in 
 damages for the refusal to carry him.' 
 
 § 6. Transportation of Passengers upon Freight-trains. — (1.) In general. — 
 It is the undoubted right of railway companies to appropriate a portion of their 
 trains exclusively to the carrying of freight, and to entirely exclude passengers 
 therefrom. Their obligations to the public only require them to furnish suffi- 
 cient passenger-trains to accommodate the travel, and such freight-trains as the 
 business of the country along their line requires. They are not required to 
 carry passengers upon their freight- trains, or freight on their passenger- trains. 
 But they may, if they choose, do either. ^ When, therefore, a railroad company 
 regularly carries passengers upon its freight-trains, and holds itself out to the 
 public as ready to do so, it thereby becomes a common carrier of passengers by 
 such freight-trains, and the right of a passenger to passage thereon, subject to 
 reasonable regulations, is as assured as upon the regular passenger-trains.* 
 
 A very common regulation is that passengers, before going on board freight- 
 trains, shall procure their tickets at the company's office, and on failure to do so 
 shall be expelled from the train. The reasonableness of a regulation of this 
 kind is not denied.^ But in order that the company may be in a position to 
 enforce such a regulation, it is necessary that proper facilities should be pro- 
 vided for passengers to obtain their tickets, and that the ticket-office of the 
 company be open for a reasonable time previous to the departure of the train. ^ 
 
 ' NeUis V. New York etc. R. Co., 30 N. Y. 111. 312; Toledo etc. R. Co. v. Patterson, 63 
 
 -505. 111. 304; Illinois etc. R. Co. v. Sutton, 42 111. 
 
 2 Jeflfersonville etc. R. Co. v. Rogers, 38 438; Illinois etc. R. Co. v. Nelson, 59 111. 110; 
 Ind. 116. Law v. Illinois etc. R. Co., 32 Iowa, 534; In- 
 
 3 Chicago etc. R. Co. v. Randolph, 53 III. dianapolis etc. R. Co. v. Rftiard, 46 Ind. 
 610; Railway Co. v. Moore, 49 Texas, 31. 293. It is also a reasonable regulation that 
 
 * Chicago etc. R. Co. v. Flagg, 43 111. 304; only such passengers shall be permitted 
 
 Hazard v. Chicago etc. R. Co., 1 Biss. 503; to ride upon freight- trains as are provided 
 
 Mobile etc. R. Co. v. McArthur, 43 Miss. with tickets of a particular description,— 
 
 180. for example: a round -trip ticket, a thou- 
 
 ^ Chicago etc. R. Co. v. Flagg, supra; sand- mile ticket, or a pass. Faulkner v. 
 
 Cleveland etc. R. Co. v. Bartratn, 11 Ohio Ohio etc. R. Co., 55 Ind. 369. 
 
 St. 4.57 ; St. Louis etc. R. Co. v. Myrtle, 51 Ind. « St. Louis etc. R. Co. v. Myrtle, 51 Ind. 
 
 666; Lake Shore etc. R. Co. v. Greenwood, 79 566; Evans v. Memphis etc. R. Co., 56 Ala. 
 
 Pa. St. 373; Evans v. Memphis etc. R. Co., .W 246; Chicago etc. R. Co. v. FIngg, 43 111. 364; 
 
 Ala. 246; Kansas etc. R. Co. v. Kessler, 18 Illinois etc. R. Co. v. Johnson, 67 1)1. 312; 
 
 Kau. 523; Illinois etc. R. Co. v. Johnson, 67 Illinois etc. R. Co. v. Sutton, 42 111. 438.
 
 344 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 If it has been customary to receive passengers upon freight-trains without 
 requiring them previously to procure tickets at the company's ofHce, a person 
 who has travelled upon these trains before the adoption of such a regulation, and 
 indeed afterwards, without objection by the company's servants for want of a 
 ticket, cannot be put off the tra,in without proof of express notice to him of the 
 regulation requiring tickets to be purchased before entering the train. The post- 
 ing of the new regulation in the station-houses of the company, in such a case, is 
 not notice sufficiently express. ^ 
 
 If the railroad company, after having carried passengers upon its freight-cars, 
 sees fit to adopt a regulation excluding them altogether, it will be responsible in 
 punitory damages to a passenger who, having purchased a ticket of one of its 
 station-agents, with the assurance that such ticket entitled him to passage upon 
 the company's freight-trains, is afterwards expelled from one of these trains by 
 the conductor in consequence of such i-egulation.^ 
 
 (2.) WIio are to be regarded as Passengers. — When, by the regulations of the 
 company, passengers are forbidden to ride upon freight-tmins, and a person 
 nevertheless does so with the knowledge of the conductor of the train, it is 
 sometimes a question as to what are the riglits of this person under these 
 circumstances. In Eaton v. Delaware, etc. Bailroad Company,^ the facts were 
 that the plaintiff was invited by the conductor of a coal-train to ride upon his 
 train to a certain point, with a promise to get him employment as a brakeman. 
 While making this journey, the caboose in which the plaintiff was seated was 
 run into and demolished by a following train, on account of the negligence of the 
 conductor of the coal-train. In an action for injuries received by this accident, 
 it appeared that there was a printed regulation of the defendants for the use of 
 their employees, by which passengers were forbidden to ride upon coal-trains, 
 but of this the plaintiff had no actual knowledge. It did not appear that passen- 
 gers were habitually or occasionally permitted to ride in the caboose. The court 
 held that, as the conductor of the coal-train acted wholly without authority in 
 the premises, and in violation of express instructions, there was nothing in the 
 foregoing circumstances which would imply the existence of the relation of 
 carrier and passenger between the plaintiff and the defendant; that, as the 
 plaintiff was on the train without authority, he was there unlawfully, and could 
 not recover for the injm-ies received. 
 
 The foregoing decision is strictly in accord with the circumscribed views of 
 the courts of the State of New York in regard to the scope of a servant's 
 authority, and the immunity of the master from liability for the results of acts 
 for the doing of which the servant was not hired.* But as courts in general are 
 not disposed to thus limit the responsibility of the master for the acts of his 
 servant, it will not be surprising to find that a contrary opinion is entertained 
 upon this question. Thus, the Supreme Judicial Court of- Maine, in Dunn v. 
 Grand Trunk Bailroad Company,^ have held that a person who enters the 
 "saloon-car" [caboose?] of a freight-train, and after the train has started 
 remains there, without being requested or dii-ected to leave by the conductor, 
 
 > Lake Shore etc. K. Co. v. Greenwood, 79 > 57 N. Y. 382. 
 
 Pa. St. 373. 4 Isaacs v. Third Avenue R. Co., 47 N. Y. 
 
 - Kansas Pacific R. Co. v. Kessler, 18 Kan. 122 ; Parker v. Erie R. Co., 5 Hun, 57 
 523. 3 58 Me. 187, ante, p. 328.
 
 TRANSPORTATION UPON FREIGHT-TRAINS. 345' 
 
 Classification of Passengers. 
 
 who receives from him the usual fare of a first-class passenger, such person is 
 to be regarded as a passenger, and the corporation incurs the same liability for 
 his safe transportation as if he were in the regular passenger-coaches at the 
 time of the injury, although the regulations of the defendant prohibited the 
 carrying of passengers upon freight-trains. The court said : " The regulations of 
 the defendant corporation are binding on its servants. Passengers are not 
 presumed to know them. Their knowledge must be aflSrmatively proved. If 
 the servants of the corporation, who are bound to know its regulations, neglect 
 or violate them, the principal should bear the loss or injury arising from such 
 neglect or violation, rather than strangers. The corporation selects and appoints 
 its servants, and it should be responsible for their conduct while in its employ.'" 
 To the same effect is the decision of the Supreme Court of Pennsylvania in the 
 late case of Creed v. Pennsylvania Railroad Company.'^ These last two cases 
 would seem to express the better view of this question, and they have the sup- 
 port of authority in analogous cases.^ 
 
 When the evidence shows the existence of a rule excluding passengers from 
 freight-trains, and that the conductor had no authority to relax the rule, and 
 that the person injured while riding upon such a train was acquainted with the 
 regulations of the company in this particular, it is obvious that it cannot be 
 presumed that the company contracted to carry such injured person as a passen- 
 ger; and no action can be maintained for the injury resulting in his death, 
 caused Sy the wreck of the freight-train.* 
 
 § 7. Classiflcation of Passengers. — (1 .) According to Sex. — It is a recognized 
 rule that a carrier cannot capriciously discriminate between passengers on 
 account of their nativity, color, race, social position, or their political or 
 religious beliefs. Classifications and discriminations may be made for the 
 general convenience and security of the passengers, but such distinctions must 
 be on some principle or for some reason which the law recognizes as just and 
 equitable, and founded in sound public policy. The reservation of a car for the 
 accommodation of ladies, and gentlemen in company wjth ladies, is a measure 
 the reasonableness of which has always been conceded.^ The company have a 
 right to enforce obedience to such a regulation, and, after notice to a passenger 
 attempting to enter the " ladies' car," may exclude him with force if necessary, 
 but, of course, using no greater amount than adequate to the circumstances of 
 the case.* 
 
 If there be no sitting room for passengers excluded by the regulation from the 
 
 ' 58 Me. 192. ♦ Houston etc. R. Co. v. Moore, 49 Texas, 
 
 2 86 Pa. St. 139. See also Lawrenceburgh 31. 
 
 etc. R. Co. V. Montgomery, 7 Ind. 474; Lucas s Chicago etc. R. Co. v. Williams, 55 111. 
 
 V. Milwaukee etc. R. Co., .33 Wis. 41. 185; Bass v. Chicago etc. R. Co., 36 Wis. 4.50; 
 
 3 Lackawanna etc. R. Co. i;. Chenewlth, s. c. 39 Wis. 636; 42 Wis. 654, ante, p. 311; 
 52 Pa. St. 382; Wilton v. Middlesex R. Co., Peck v. New York etc. R. Co., 70 N. Y. 587. 
 107 Mass. 108; 8. c. 125 Mass. 130; O'Donnell See also The State v. Overton, 24 N. J. L. 
 V. Allegheny R. Co., 59 Pa. St. 249; Washburn 4.35, 441 ; Pittsburgh etc. R. Co. v. Hinds, 5* 
 V. Nashville etc. R. Co., 3 Head, G.38; East Pa. St. 572, ante, p. 295. 
 
 Saginaw City R. Co. v. Bohn, 27 Mich. 503; " Peck v. New York etc. R. Co., supra; 
 
 Pittsburgh etc. R. Co. v. Caldwell, 74 Pa. St. Bass v. Chicago etc. R. Co., supra; McKinley 
 421. V. Chicago etc. R. Co., 44 Iowa, 314.
 
 346 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 ladies' car, but room to seat them there, they cauuot be left standing without a 
 breach of the contract of carriage. But, in such case, it rests in the discretion 
 of the proper officials of the train to select those to be admitted. Passengers 
 aggrieved by the exercise of such discretion, have their remedy in an action for 
 breach of the contract of carriage. ^ A railway company will be responsible for 
 the forcible exclusion of a colored woman from the ladies' car by their servant, 
 although the managing officers of the train have never given any orders to 
 this effect, and the act of the servant in so doing was from mere caprice or 
 wantonness.^ 
 
 (2.) According to Color. — If a classification is to be made upon this basis, it 
 must be founded upon something more substantial than mere prejudice. This 
 regulation must be reasonable, like all other regulations of the carrier.^ In the 
 absence of a statute controlling this matter, it has been held that a rule of a 
 railroad company requiring colored persons to sit at one end of a car, separate 
 from the other passengers, is not an unreasonable regulation.* Agnew, J., who 
 delivered the opinion of the court in this case, justified this discrimination as 
 ordained by Providence in the nature of things, intermarriage of the races being 
 contrary to natural law, and the races themselves being naturally geographically 
 separated. Moreover, the separation of passengers in this manner "prevents 
 contacts and collisions arising from natural or well-known customary repug- 
 nancies, which are likely to breed disturbances by a promiscuous sitting." It is 
 obvious that the latter is the true reason ; and the former, without the existence 
 of the latter, would afford no justification whatever for a regulation of this kind. 
 In an earlier case in an inferior court in the same State, it was held that a regula- 
 tion of a street-car company confining negroes to the front platform exclusively, 
 was reasonable, and justified expelling from the car the plaintiff, a colored man 
 who insisted upon having a seat inside .^ 
 
 In Hall v. De Cuir,*^ the Supreme Court of the United States decided that a 
 statute of Louisiana which prohibited common carriers of passengers from 
 making discriminations on account of color was unconstitutional and void as 
 being a law in restraint of commerce ; and that, too, although under the facts of 
 the case at bar the passenger who had been excluded from the cabin occupied 
 by white people was travelling up the river from New Orleans to a point within 
 the State of Louisiana. Waite, C. J., said: "The river Mississippi passes 
 through or along the borders of ten different States, and its tributaries reach 
 many more. The commerce upon these waters is immense, and its regulation 
 clearly a matter of national concern. If each State was at liberty to i-egulate 
 the conduct of carriers while within its jurisdiction, the confusion likely to 
 follow could not but be productive of great inconvenience and unnecessary hard- 
 ship. Each State could provide for its own passengers and regulate the trans- 
 portation of its ovm freight, regardless of the interests of others. Nay, more, 
 it could prescribe rules by which the carrier must be governed within the State 
 
 1 Bass V. Chicago etc. R. Co., supra. But ■* West Chester etc. R. Co. v. Miles, 55 Pa. 
 
 see Thorpe v. New York etc. R. Co., 13 Hun, St. 209. 
 
 70. 5 Goines v. McCaudless, 4 Phila. 255. 
 
 ' Chicago etc. R. Co. v. Williams, 55 111. 185. « 95 U. S. 485 (reversing s. c. sub nom. Dc 
 
 3 Chicago etc. R. Co. v. Williams, 55 111. Cuir v. Benson, 27 La. An. 1). 
 
 185 ; Day v. Owen, 5 Mich. 520, ante, p. 30G.
 
 CLASSIFICATION OF PASSENGERS. 347 
 
 According to Color. 
 
 ia respect to pasisengers and property brought from without. On one side of 
 the river, or its tributaries, lie might be required to observe one set of rules, and 
 on the other another. Commerce cannot flourish in the midst of such embar- 
 rassments. No carrier of passengers can conduct his business with satisfaction 
 to himself, or comfort to those employing him, if on one side of a State line his 
 passengers, both white and colored, must be permitted to occupy the same cabin, 
 and on the other be kept separate. Uniformity in the regulations by which he 
 is to be governed from one end to the other of his route is a necessity in his 
 business, and to secure it, Congress, which is untrammelled by State lines, has 
 been invested with the exclusive legislative power of determining what such 
 regulations shall be.'" 
 
 The foregoing opinion was delivered at the October term, 1877. It is to be 
 noticed that the decision of this case was in no manner affected by the Supple- 
 mental Civil-Rights Bill of March 1, 1875, as the cause of action accrued prior 
 to that date ; therefore this piece of congressional legislation was not discussed 
 in this case. 
 
 It is provided by the first section of the act just mentioned, ^ " that all per- 
 sons within the jurisdiction of the United States shall be entitled to the full 
 and equal enjoyment of the accommodations, advantages, facilities, and privi- 
 leges of inns, public conveyances on land or water, theatres, and other places of 
 public amusement ; subject only to the conditions and limitations established 
 by law, and applicable alike to citizens of every race and color, regardless of 
 any previous condition of servitude." 
 
 The second section provides that any person who shall violate the preceding 
 .section shall be liable to a penalty of not less than .$500, and also to an indict- 
 ment for a misdemeanor : the penalty to be recovered by suit of the party injured, 
 and the indictment also to be prosecuted in the Federal courts. 
 
 We are not aware that this act of Congress has been at all discussed by the 
 court of last resort, and, so far as we can ascertain, it lias been but seldom 
 passed upon by the Federal judges of the lower courts. Giles, J., of the 
 United States District Court for the District of Maryland, in a charge to a jury,^'' 
 assailed the constitutionality of the act, on the principle of the Slait(/hter- House 
 Cases* and subsequent cases, ^ so far as it .sought to inflict penalties for 
 the violation of rights which, if at all existing, belonged to the injured parties 
 as citizens of a State, and not to citizens of the United States as such, and 
 therefore exempt from the control of Federal authority. Mr. District Judge 
 Dick, of the same court for the Western District of North Carolina, in a charge 
 to a grand jury, took a similar view of that part of the act relating to inn- 
 keepers.* Sawvkh, J., of the Ninth Federal Circuit, is reported to have said of 
 this law, in a case which arose from the refusal of a theatre manager to admit a 
 colored person to his house: "Congress has no power to make such a law; 
 though the Legislature of any State might perhaps do so.' The management 
 
 1 95 U. S. 489. « The Civil-Rights Bill, 1 Hughes, ."541 
 
 2 Acts 1874-n5, p. 335, chap. 114. "> Sec Donnell v. The State, 48 Miss. 661; 
 
 3 Cully V. Baltimore etc. H. Co., 1 Hughes, Sauvinet r. Wiilker, 27 La. An. 14; Peter's 
 636. < 16 Wall. 36. Case, !) Am. L. Hcv. IW. But see District v. 
 
 5 United States v. Reese, !I2 U. S. 214; Saville. 9 Am. L. Rev. 584. 
 United states r. Cruikshaiik, 92 U. S. 542.
 
 348 KEGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 of a theatre is a private enterprise; the proprietor conducts it for his own 
 profit : it is his investment, and he can lay down the laws by which it shall be 
 conducted, and the public has nothing to do with it." ' In a case before 
 Ekskixe, J., of the United States District Court for the District of Georgia, the 
 facts were that the libellaut applied for passage upon a steamboat and demanded 
 admission to the cabin, occupied and reserved for white passengers, offering to 
 pay the price charged for the same. The price tendered was refused, and she 
 was directed to go to that portion of the boat reserved for colored people, which 
 was substantially equal to the cabin occupied by white passengers. On her 
 persistent refusal to do so, she was put off at the next landing-place of the boat. 
 The court said: "Congress has not deemed it necessary or essential to the 
 welfare of the colored citizen to enact any law forbidding interstate common car- 
 riers by water or laud from regulating the business of their vessels or vehicles 
 in such manner that the accommodations for colored passengers on their respec- 
 tive conveyances may be distinct and separate from those assigned to white 
 passengers. Yet colored passengers are entitled to accommodations as suitable 
 as those designated for the exclusive use of white passengers." ^ 
 
 It is apparent from the foregoing that the colored citizen may have the "full 
 and equal enjoyment " of the accommodations of the carrier although he does not 
 mingle with white passengers. Other judges have intimated that this is possible. 
 "There is no principle of law, human or divine, that requires all men to be 
 thrown into social hotchpot in order that their equality of civil rights may be 
 secured and enforced. The Civil-Rights Bill neither imposes nor was intended 
 to impose any such social obligation. It only proposes to provide for the 
 enforcement of legal rights guaranteed to all citizens by the laws of the land, 
 and leaves social rights and privileges to be regulated, as they have ever been, 
 by the customs and usages of society." ^ 
 
 In IF' dl V. De Cm>,* although this act was not under discussion, Clifford, 
 J., expressed views which are interesting as an exposition of general principles. 
 Citing with approval the decision of the Supreme Court of Michigan in a case 
 of this kind,^ he said: "The right to be carried is one thing, and the privilege 
 of a passenger on board as to what part of the vessel may be occupied by him, 
 is another and a very different thing ; and they add that it is the latter, and not 
 the former, which is subject to reasonable rules and regulations, and is, where 
 such rules and regulations exist, to be determined by the proprietors.® * * * 
 Substantial equality of right is the law of the State and of the United States ; 
 but equality does not mean identity, as, in the nature of things, identity in the 
 accommodation afforded to passengers, whether colored or white, is impossible 
 unless our commercial marine shall undergo an entire change. Adult male 
 passengers are never allowed a passage in the ladies' cabin, nor can all be 
 accommodated, if the company is large, in the state-rooms. Passengers are 
 entitled to proper diet and lodging ; but the laws of the United States do not 
 require the master of a steamer to put persons in the same apartment who 
 would be repulsive or disagreeable to each other." ^ And further, he cited 
 
 1 11 Am. L. Rev. 166. 3 Per Dick, J., The Civil-Kights Bill, 1 
 
 « Green v. The City of Bridgeton, 9 Cent. Hughes, 541, 547. '• 05 U. S. 4S5. 
 
 L. J. 20G, 208. 6 Day v. Owen, ante, p. 306. 
 
 5 95 U. S. 501. ' Id. 503.
 
 CLASSIFICATION OF PASSENGERS. 349 
 
 According to Color. 
 
 -with approbation the various decisions to the effect that equality of rights does 
 not involve the necessity of educating white and colored persons in the same 
 school. 1 
 
 Judicial authority is not vranting, however, in favor of a contrary construction 
 of the language under discussion. Thus, in Bailroad Company v. Brown,'' which 
 arose under a private act of Congress passed in 1863, granting certain privi- 
 leges to a railroad corporation, accompanied with the provision, however, that 
 "no person shall be excluded from the cars on account of color," it was held 
 that this language meant that persons of color should travel in the same cars 
 Avith white people, and that the enactment was not satisfied by the company pro- 
 viding cars assigned exclusively to people of color, though they were as good as 
 those which they assigned exclusively for white persons, and in fact the very 
 •cars which were at certain times assigned exclusively to white persons. 
 Davis, J., said, in regard to the passage of this act: "It was the discrimina- 
 tion in the use of the cars on account of color, where slavery obtained, which 
 was the subject of discussion at the time, and not the fact that the colored race 
 could not ride in the cars at all."^ And in Coger v. North-Wei>tern Union 
 Packet Company,* which was an action by a colored passenger for having been 
 forcibly excluded from the dinner-table provided for passengers in general, and 
 ■ordered to take her meals upon the guards of the boat or in the pantry, as it was 
 •customary for colored passengers, the court held that under the Fourteenth 
 Amendment and the Civil-Rights Bill of 1866, which guaranteed to colored 
 persons the right to make and enforce contracts, she had a right to the accom- 
 modations demanded.^ 
 
 Railroad corporations are expressly prohibited by statute in Pennsylvania ^ from 
 this classification of their passengers ; any person on account of color or race 
 compelled to occupy any particular part of theii;-. cars may recover $500 in an 
 action of debt, as damages for this grievance.' Under this statute, Paxson, J., 
 was of opinion that the mere fact that the plaintiff was excluded from a certain 
 car, and directed to take a seat in another car equally comfortable, in which 
 white persons were seated, was of itself no evidence that she was excluded on 
 account of her color. " I do not think," said he, " it was intended by said act to 
 give them superior privileges, or to so interfere with the reasonable police 
 arrangement of railroad companies in operating their road and moving their 
 cars as to enable a colored man to force himself into a car where, by reason of 
 *uch police regulations, a white man may not enter. An ordinary traveller takes 
 
 1 The State v. McCann, 21 Ohio St. 198; by white passengers, and the case is not an 
 Boberts w. Boston, 5 Gush. 198; The State V. authority against the contention that a 
 Dutfy, 7 Nev. 342; The People v. Easton, 13 classification of passengers may be made 
 Abb. Pr. (N. S.) 160; Dallas v. Fosdick, 40 Without violating the provisions of the Sup- 
 How. Pr. 249. See also Cory v. Carter, 48 plemental Civil-Rights Bill of 1875. See this 
 Ind. 327. But see Clark v. Board of Direc- case disparagingly noticed by Clifford, J., 
 tors, 24 Iowa, 267. in Hall v. De Cuir, 95 U. S. 485, 507. Com- 
 
 » 17 Wall. 445. » Id. 452. pare Ellis v. Nariagansett Steamship Co., 
 
 * 37 Iowa, 145. Ill Mass. 146. 
 
 6 In this case it will be observed that the •> Act of March 22, 1867, Pamph. Laws, 38; 2 
 
 -conveniences accorded to colored persons Bright. Purd. Dig. 1228, § 80. 
 
 ■were In no respect equal to those enjoyed ' Central R. Co. v. Green, 86 Pa. St. 427.
 
 350 REGULATIONS OF THE CARRIER. 
 
 Notes. 
 
 his seat in such car as may be pointed out to him by those in charge of the 
 train. In doing so, he recognizes the undoubted right of the company to desig- 
 nate the car which he shall enter. He has a right to a seat, but not to a seat in 
 any particular car." ^ 
 
 § 8. Exclusion of "Runners" from Carrier's Vehicles and Premises. — The 
 well-established right of carriers to make reasonable regulations for the conduct 
 of passengers and others transacting business upon their premises, is accom- 
 panied by the right to exclude from their premises persons having no business 
 with the carrier, and whose presence would be detrimental to his interests or the 
 safety and convenience of passengers.'^ This rule follows naturally from the 
 strict accountability to which the carrier is held for the safety of passengers 
 and goods intrusted to his charge. It may be true that when the carrier con- 
 structs and opens station-houses designed for the reception of the public, by so 
 dohig an implied license is prima facie given to all persons to enter his premises, 
 and no person is a trespasser by merely entering therein. But such a license is 
 revocable, and when revoked, the right to enter or remain is terminated.* Thus, 
 it has been held proper to exclude by force, if necessary, an innkeeper from a 
 railroad depot, whose habit had been to enter the depot and annoy passengers by 
 soliciting patronage for his house, having been previously notified that he must 
 discontinue the practice.* And such person's rights will not be enhanced in the 
 premises even though he has in his possession a ticket entitling him to passage 
 upon the defendant's railroad, and he enters the depot with the bona fide inten- 
 tion of taking the cars, if he fails to exhibit the ticket when ordered to leave 
 the station, and his conduct is such as to induce the defendant's agent to believe 
 that his intention is to continue to violate the regulations of the company.* 
 But the carrier's station-agMjit will not be justified in thus removing a person 
 merely because, in his judgment, and without proof of the fact, he has violated 
 regulations of the company, although he had conducted himself offensively to 
 such agent personally-i^ 
 
 A person resorting to a railroad station for the purpose of taking a train 
 should come within a reasonable time for this purpose next prior to the departure 
 of the train. He has no right to come, it may be, hours before such departure, 
 and insist upon his right to remain there merely because he intends to take 
 passage on a train sometime.' An omnibus proprietor who carries passengers 
 and their luggage for hire, to and from a railway station, cannot maintain an 
 action against the company for refusing to allow him to drive his vehicle inta 
 their station-yard. Said Jervis, C. J., in this case : " It is not pretended that 
 the plaintiff was using, or seeking to use, the railway. What right, then, can he 
 have to say to the company, 'I will use your private property for my profit?' 
 
 1 Central R. Co. v. Green, 82 Pa. St. 426. 3 The Commonwealth v. Power, and Har- 
 
 * Jcncks V. Coleman, ante, p. 11 ; The Com- ris v. Stevens, supra. 
 
 monwealth v. Power, 7 Mete. 596; Hams t?. * The Commonwealth v. Power, supra; 
 
 Stevens, 31 Vt. 79; Barker v. Midland R. Co., Landrigan v. The State, 31 Ark. 50. 
 
 18 C. B. 46. See also Markham v. Brown, 8 ' The Commonwealth r. Power, supra. 
 
 X. H. 523. 
 
 « Hall V. Power, 12 Mete. 482. 
 ' Harris v. Stevens, 31 Vt. 79.
 
 RUNNERS AND DRUMMERS. 351 
 
 Trafficking on Carrier's Vehicle. 
 
 Tliere is no pretence for the action. It has neither principle nor any color of 
 authority to sustain it." ^ 
 
 A carrier is not bound to give passage to a person who desires to use the 
 facilities which such passage affords for trafficking purposes of his own. Any 
 other rule would be demoralizing to good management.^ 
 
 1 Barker v. Midland R, Co., 18 C. B. v. The D. R. Martin, 11 Blatchf. 233; s. c. & 
 i6, 58. Ch. Leg. N. 535; suh nom. Barney v. The 
 
 2 Jencks v. Coleman, ante, p. II; Barney Oyster Bay & Steamboat Co., 67 N. Y. 301.
 
 CHAPTER X. 
 
 LIABILITY OF THE CARRIER FOR ASSAULTS UPON PAS- 
 SENGERS BY HIS SERVANTS. 
 
 XiEADiNG Case: Pendleton v. Kinsley. — This liability arises out of the contract 
 of carriage, and does not depend upon the consideration 
 whether at the time of the assault the servant was acting 
 within the scope of his employment. 
 
 Notes: § 1. Wanton and malicious trespasses of sen'ants. 
 
 2. Servant acting in the scope of his employment. 
 
 3. Authority of servants of carrier to make arrests. 
 
 4. Use of excessive force by the servant in the execution of the 
 
 carrier's business. 
 6. Besume of the circumstances justifying ejection of passenger. 
 6. Where persons may be expelled from a railroad train. 
 
 Pendleton v. Kinsley.* 
 
 Circuit Court of the United States, Rhode Island District, 1871. 
 
 Before Hon. Nathan Clifford, LL.D., Associate Justice of the Supreme Court, 
 assigned to said Circuit. 
 
 1. Unwarrantable Assaults upon Passengers by the Carrier's Servants are 
 Breaches of the Contract of Carriage, and as such impose Liiability upon 
 the Carrier. — The principles of law applicable to the relations of master and servant 
 do not fully define the rights, duties, and obligations between carriers and their pas- 
 sengers. They are not merely citizens, bearing only towards each other the relations 
 which one citizen bears to another. The carrier agrees to carry for hire the passenger 
 from one place to another, and is responsible for any breach of the obligation thus 
 assumed, in ill-usage of the passenger by himself or employees. Passengers do not 
 only contract for room and transportation, but for good treatment, and it is the duty of 
 the owners to use due care and exertion to protect them from any degree of violence, 
 abuse, or ill-treatment from other passengers, or the carrier's servants, or other persons 
 coming on board during the trip. The principal in this class of cases is liable for 
 the misconduct of the employee, when it occasions injury to the passenger, whether 
 arising from malice or neglect. 
 
 ■2. Case in Judgment. — While collecting fares during one of the regular trips of a 
 steamer owned by the defendant, the clerk of the steamer engaged in a dispute with 
 the plaintiff, a passenger, as to his fare, and inflicted personal injuries upon him. It 
 was held, irrespective of the dispute, and as if none had arisen, that the plaintiff could 
 recover for the injuries received, although the defendant did not authorize the acts of 
 his employee. 
 
 • Reported, 3 Cliff. 416. 
 
 (352)
 
 ASSAULTS UPON PASSEKGEKS. 353 
 
 United States Circuit Court, Rhode Island. 
 
 Case against the defendant to recover damages for injuries result- 
 ing to the plaintiff from an assault and battery alleged to have been 
 inflicted upon him by one Charles L. Stanhope. Personal injuries were 
 inflicted on the plaintiff by Charles L. Stanhope, clerk of the steamboat 
 Perrj'-, employed at the time and for many 3'ears before in carrying 
 passengers and freight between Newport and Providence, in this dis- 
 trict, and he brought action against the defendant, as the owner of the 
 steamer, to recover compensation for the injuries so inflicted while he 
 was a passenger on board the steamer. Service having been made upon 
 the defendant, he appeared and pleaded the general issue, and upon 
 that issue the parties went to trial, and the jury, under the instructions 
 of the court, returned a verdict for the defendant, subject to the opinion 
 of the court upon questions of law reserved by the court for further 
 •consideration. Evidence was introduced by the plaintiff suflScient to 
 warrant the jury in finding that the defendant was owner of the steamer 
 for the vo\'age, — as it appeared that the record-title of the steamer was 
 in his name ; that the clerk was in the employment of the defendant. 
 and that the steamer was not under charter to any other person. 
 
 Business made it necessary for the plaintiff to go to Providence on 
 the 29th of August, 1862, and, being at Newport at the time, he went 
 on board of the steamer for that purpose before she started from New- 
 port on her morning trip to the former place. He had often passed 
 over that route in that steamer before, and, having been accustomed to 
 purcliase tickets for the trip, of the clerk of the steamer, he applied to 
 liim for one on this occasion, within a short time after he went on board, 
 and offered him a one-dollar bill on one of the national banks of the 
 State to pay for the ticket. The price of tickets was fifty cents, and 
 the witness states that he had frequentl}^ offered bills for tickets before 
 that time, and seen others do the same thing, and that the clerk always 
 received the bills and made change without any objection. On this 
 occasion, however, he refused to take the bill or give him a ticket, say- 
 ing that he had no change ; to which the plaintiff replied : "If you have 
 no change, give me postage-stamps." But the clerk replied to that sug- 
 gestion, that he iiad no postage-stamps, and suggested that the plaintiff 
 would have to take two tickets ; to which the plaintiff replied that he did 
 not want two tickets, adding that he was not accustomed to purchase 
 tickets in advance. Whereupon the plaintiff left the main deck, where 
 the office of the clerk was, and went to the saloon-deck, above, where 
 there were many gentlemen and ladies and children sitting on the 
 settees facing the stern of the steamei-. Nothing further of importance 
 occurred till after the steamer passed Portsmoutii Grove, when the 
 
 23
 
 354 ASSAULTS UPON PASSENGERS 
 
 Pendleton v. Kinsley. 
 
 expvess-agent came round to collect the tickets from the passengers, as 
 he sometimes did, in the place of the clerk who had charge of that 
 business. He went to the plaintiff and asked for his ticket, but the 
 plaintiff told him that he had none ; that he offered to pay for one 
 when he first came on board, and that the offer which he made was 
 refused ; to which the express-agent replied, "You will have it to pay," 
 and passed along. In a few minutes the clerk and the express-agent 
 came up together, and the clerk demanded pay for his fare of the plain- 
 tiff ; but the plaintiff replied substantially as before, that he had once 
 offered to pay for a ticket, and that he (the clerk) had refused to accept 
 the pay- for the same. Here the conversation ended, but the clerk seized 
 the plaintiff by the collar and pulled him violently from the settee where 
 he was sitting, pushed him from there to the companion-way, and shoved 
 him down those steps to the main deck, near where he was when he 
 offered to purchase and pay for a ticket, and from there he pushed him 
 to the companion-way leading to the lower deck, and shoved him down 
 that passage-wa}^ also to the lower cabin, and set him down violently on 
 the seat near the berths, and left him without any explanation. Left 
 alone, he remained there for a short time, and then went to the saloon- 
 deck, where he was when he was assaulted ; and on the arrival of the 
 steamer at Providence he left her unmolested, and on the following day 
 returned to his own residence. 
 
 Evidence was introduced by the plaintiff tending to show that he was 
 seriously injured in his back and other parts of his body, and that the 
 injuries were of a permanent character. Much testimony was intro- 
 duced as to the extent of his injuries, but it is unnecessary to refer to it 
 in this report, as the defendant at the close of the plaintiff's case moved 
 the court to instruct the jury that in view of the whole evidence the 
 plaintiff could not recover, and that their verdict should be for the 
 defendant, and the court gave that instruction as requested. After the 
 verdict a motion for a new trial was duly filed by the plaintiff, and the 
 parties were heard upon the question whether the defendant, in any view 
 of the evidence, was liable for the assault committed on the plaintiff b}- 
 the clerk of the steamer. 
 
 J. 31. Blake and F. W. Miner, for plaintiff; W. P. Sheffield, for 
 defendant. 
 
 Clifford, J. — Owners of vessels engaged in carrying passengers 
 assume obligations somewhat different from those whose vessels are 
 employed as common carriers of merchandise. Obligations of the 
 kind in the former case are in some respects less extensive and more 
 q-ialified than in the latter, as the owners of the vessel carrying pas-
 
 BY THE CAKRIEU'S SERVANTS. 355 
 
 United States Circuit Court, Rhode Island. 
 
 sengers are not insurers of the lives of their passengers, nor even of 
 their safety, but in most other respects the obligations assumed are 
 equally comprehensive and stringent. Carriers of passengers by land, 
 it was said in one of the earl}^ cases, are not liable for injuries happen- 
 ing to passengers from unforeseen accident or misfortune, where there 
 has been no negligence or default ; but it was held in the same case 
 that the smallest negligence would render the carrier liable, and that 
 the question of negligence was for the jur3\i Where the injury for 
 which the action was brought resulted froui the breaking of the axle 
 of the coach, the court held, in the case of Christie v. Griggs,'^ that 
 "when the breaking down or overturning of a coach is proved, negli- 
 gence on the part of the owner is implied," subject, of course, to 
 opposing testimony; that the question of negligence was for the jury; 
 that if it appeared that the axletree was sound, •' as far as the human 
 eye could discover," the defendant was not liable ; that there was a 
 difference between a contract to carry goods and a contract to carr}' 
 passengers ; that the carrier of goods was liable at all events ; that the 
 carrier of passengers did not warrant their safety ; that his undertaking 
 went no further than that he would provide for their safe conve^'ance, as 
 far as human care and foresight could go ; that the owner was liable if 
 there was the least negligence ; but that the plaintiff had no remedy for 
 the misfortune, if the breaking down of the coach was purel3' accidental. 
 Attempts have been made to show that the rnle laid down in the case of 
 Sharp V. Grey ^ is more stringent against the owner, but the question 
 submitted to the jury in that case was whether the degree of vigilance 
 practised by the defendant was such as was required b}' his engage- 
 ment, and two at least of the judges concurred in refusing the motion for 
 the new trial upon the ground that the question was one of fact for the 
 jury. The remarks of the chief justice in the case of Crofts v. Water- 
 house * are sometimes referred to as advancing a more stringent rule, 
 but the opinion, taken as a whole, furnishes no support to the sugges- 
 tion, and his associate on the occasion stated in terms that a carrier of 
 passengers is onl}^ liable for negligence. Proprietors of stage-coaches, 
 it is held in the case of Ingalls v. B>lh^^ are not answerable for 
 an injury to a passenger which happens by reason of a hidden defect 
 in an iron axleuve, wliich defect, being entirely surrounded by sound 
 iron one-fourLli of an inch thick, could not be discovered by the most 
 careful external examination. Carriers of passengers by railways or 
 steamers are bound to greater precautions, and to a higher degree of care, 
 
 1 Aston V. Heaven, 2 Esp. 533. 3 9 Ring. 457. 4 3 Ring. 319. 
 
 - 2 Camp. 79; s. c. ante, p. 181. <> 9 Mc-tc. l;s.c. ante, p. 112.
 
 356 ASSAULTS UPON PASSENGERS 
 
 Pendleton v. Kinsley. 
 
 skill, and vigilance in the preparation and management of the vehicles or 
 means of conveyance, than are required of the owners of stage-coaches, 
 because the car of the railway proprietor and the steamer of the carrier 
 by water are intended to sustain far greater weight, and are to be pro- 
 pelled by much greater power and at much greater speed, i 
 
 Passengers must take the risk incident to the mode of travel which 
 they select ; but those risks, in the legal sense, are only such as the 
 utmost care, skill, and caution of the carrier in the preparation and 
 management of the means of conveyance are unable to avert.^ Dam- 
 ages were claimed by the plaintiff in that case for injuries received by 
 the breaking of the axle of a railway car in which he was riding, and 
 the defence was that the car was a new one, recently purchased of a 
 manufacturer, of skill and good repute, and that it was carefully exam- 
 ined at the time of the purchase ; that the track was in good condition ; 
 that the speed of the train was not excessive ; and that the employees 
 were sufficient in number and of sufficient experience and skill, and 
 that they were guilty of no negligence ; but the court instructed the 
 jury that it made no difference whether the car was constructed by the 
 company or purchased of an experienced manufacturer, as the defend- 
 ants were liable in either event if the defect could have been discovered 
 in the process of manufacturing the axle or car, by the application of 
 any test known to men skilled in that business, and the Court of Appeals 
 affirmed the judgment. They held that the carrier of passengers was 
 bound to the utmost precaution, care, and skill in the preparation and 
 management of the means of conveyance ; but they conceded that the 
 carriers of passengers were not insurers, and that latent defects might 
 exist in machinery, undiscoverable by the most improved and vigilant 
 examination, and from which the most serious accidents may occur. 
 
 Expressions are found in the opinion of the court in the case of 
 Boyce v. Anderson ^ which leave it to be inferred that the court was of 
 the opinion that the carriers of passengers were only required to exer- 
 cise ordinary skill and care to secure their safety ; but the correct rule 
 is stated in the case of Stokes v. SaltonstaU,'^ where the same court held 
 that proof of the accident and alleged injury afforded a x>'^^'^^^ facie 
 presumption that there was carelessness, negligence, or want of skill 
 cm the part of the driver ; that, it being admitted that the carriage was 
 upset, and that the plaintiff was injured, it was incumbent on the 
 defendant to prove that the driver was a person of competent skill, of 
 
 1 Simmons v. New Bedford etc. Steamboat a Hegeman t>. Western R. Co., 13 N. Y. 24 ; 
 
 Co., 97 Masa. 367. ». c. ante, p. 160. » 2 Pet. 150. 
 
 * 13 Pet. 181 ; s. c. ante, p. 183.
 
 BY THE carrier's SERVANTS. 357 
 
 United States Circuit Court, Rhode Island. 
 
 good habits, and in every respect qualified and suitably prepared for 
 tVie business in which he was engaged, and that he acted on the occa- 
 sion 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, as the 
 owner of the coach, was liable in that action.' Negligence in the 
 smallest degree renders the carrier liable ; and there is one case in which 
 it was held that a railroad corporation was liable for injuries to a pas- 
 senger caused by a defect in an iron axle of a car, although it was of 
 such a character that it could not have been discovered l)y any prac- 
 ticable mode of examination ; but the rule there laid down is expressly 
 disapproved in a recent judgment of the Exchequer Chamber, and 
 cannot be adopted in this circuit until it is approved by the Supreme 
 Court.2 Such carriers are not insurers against accidents, nor are they 
 required to do what is impossible in the nature of things. ^ Undoubtedly 
 they are bound to the higliest degree of care, prudence, and caution ; 
 but- if the injury results from a hidden defect in the car, engine, or other 
 apparatus, unknown at the time, and which could not be detected by any 
 known means, they are not responsible, because the obligation which 
 they assumed did not require what it was not in their power to perform.'* 
 Whether the owners of a vessel engaged in carrying passengers by water 
 are or are not insurers as to the seaworthiness of the vessel, it is not 
 necessary to inquire, as no complaint is made in this case that the 
 steamer was not in a seaworthy condition.^ Passengers, however, con- 
 tract with the proprietors or owners of the conveyance, and not with 
 their agents as principals, and the question of the liability of the pro- 
 prietor or owner is wholly unaffected by the fact that the defective car, 
 engine, or other apparatus was purchased of another, if the defect was 
 one which might have been discovered by any known means. Whether 
 their engine or car was manufactured at their shop or was purchased of 
 other manufacturers, the company is equally liable to see that in the 
 construction no care or skill was omitted for the purpose of making the 
 car or engine as safe as the utmost care and reasonable skill could make 
 it. Precautions of the kind are required of the carrier to provide for 
 
 ' Hall V. Connecticut River Steamboat ^ i Smith's Ld. Cas. (5th ed.) 328. 
 
 Co., 13 Conn. 320; Briggs v. Taylor, 28 Vt. •• McElroy t'. Nashua R- Co., 4 Gush. 400; 
 
 180; Redf. on Rys. 175; Galena etc. R. Co. v. Story on Bail. 581. 
 Yarwood, 17 111. 500. 6 3 Kent's Comm. (11th ed.) 205; Lyon «. 
 
 2 Alden ?'. New York etc. R. Co., 26 N. Y. Mells, 5 East, 428; Putnam v. Wood, 3 Mass. 
 
 102; Readhcad v. Midland R. Co., L. R. 2 Q. 481; Silva v. Low, 1 Johns. Cas. 184; Whilull 
 
 B il2 : s. c. L. R. 4 Q. B. 379, aiite, p. 124 ; Sim- v. The William Henry, 4 La. tl.',. 
 oanu « Steaml>oat Co., 97 Mass. 368.
 
 358 ASSAULTS UPON PASSEKGERS 
 
 Pendleton v. Kinsley. 
 
 the safety of passengers ; but the obligation which the carrier assumes in 
 that behalf extends beyond the specified requirements in respect to the 
 vehicle, car, or other means of conveyance, and also includes an implied 
 stipulation for good treatment of the passenger during the passage, trip, 
 or vo3'age, and especially against ill-treatment by the carrier or his 
 employees, and against every degree of violence on their part, or wanton 
 interference with his person. Mistakes occur in such litigations by 
 overlooking the fact that it is the carrier, whether corporation or natural 
 person, that assumes these obligations, and not the driver, master, or 
 conductor of the conveyance, for the breach of which a right of action 
 accrues to the passenger. Breaches of the obligation assumed by the 
 carrier for proper treatment of his passengers, it is conceded, would give 
 a right of action to the passenger if the acts constituting the breach were 
 committed bj'^ the carrier himself ; but the argument is that the carrier 
 is not responsible for any wilful trespass committed by the driver, con- 
 ductor, or master, unless it be shown either that he authorized the act, 
 or ratified it after it was committed. 
 
 Many decided cases may be found where it is held that the master is 
 not liable for the wilful act of his servant, unless previously authorized 
 or subsequently ratified; but none of these cases can have any proper 
 application to the controversy before the court. ^ Examined carefully, 
 it will be found that all, or nearly all, of those decisions may be divided 
 into two classes, neither of which will afford much aid iu the solution of 
 the question involved in the present motion: 1. Cases where it is held 
 that trespass will not lie against the master for the wrongful act of his 
 servant; 2. Controversies where it appears that the acts of the servant 
 constituting the cause of action were not done by the servant in the 
 course of his employment. 
 
 Doubts are expressed by an able text-writer whether the court in the 
 leading case ever intended to decide more than that the master is not 
 liable in trespass for the wilful act of the servant; and it must be 
 admitted that the reasons assigned for the conclusion are well put, and 
 that they are entitled to great consideration. ^ Suppose that view, how- 
 ever, is not correct, then it is clear that the rule laid down in that case 
 is not applical)le in actions against corporations, as it is well settled 
 that they are responsible for acts done by their agents, "either m con- 
 tractu or in delicto," if done "in the course of its business and of their 
 employment." ^ 
 
 » McManus v. Crickett, 1 East, 108; Croft « 1 Redf. on Rys. (3d ed.) 512. 
 
 ». Alison, 4 Barn. & Aid. 590; VViiglit i>. Wil- 3 phjia. etc. R. Co. v. Quigley, 21 How. 
 
 cox, 19 Wend. 343. 210; Moore v. Fitchburg R. Co., 4 Gray. 465;
 
 BY THE carrier's SERVANTS. 359 
 
 United States Circuit Court, Ehode Island .- 
 
 Extended remarks respecting the second class of cases is unnecessar}', 
 as it fully appears that the clerk, in collecting the tickets, was engaged 
 in the business of the defendant, and was in the course of his employ- 
 ment. Masters are bound by the acts of their servants whenever there 
 is an express command of the master to make a contract or do an 
 injury, or where a servant does an injury in the immediate pursuit of 
 bis master's business, or where an injury arises to another through the 
 negligence or want of skill of the servant.^ Questions of the kind also 
 involve to some extent the relations, obligations, and liabilities of prin- 
 <'ipal and agent, as in many cases the act of the agent is the act of the 
 principal, and it is well settled that the representations, declarations, 
 and admissions of the agent in the course of his agency are deemed a 
 l)art of the res gestae, and are equally obligatory upon the principal as 
 if made by himself. Principals are not in general responsible for the 
 criminal acts or misdeeds of their agents, but they are held liable to 
 third persons, in a civil suit, for the frauds, deceits, concealments, mis- 
 representations, torts, negligence, and otlier malfeasances or misfeasances 
 and omissions of duty of their agents in the course of their employment, 
 tliough the}' did not authorize the acts, nor participate in the transac- 
 tion, and even if they forbade or disapproved what was done. Such, in 
 substance, are the views of Judge Story, as expressed in liis work on 
 Agency ; and the Supreme Court have decided that tlie rule of respondeat 
 siqierior, or that the master shall be civilly responsible for the tortious 
 acts of his servant, is of universal application, whether the act be one 
 of omission or commission, whether negligent or deceitful ; that if it 
 be done in the course of the employment of the servant, the master 
 ■ is liable ; and that it makes no difference that the master did not autlior- 
 ize or know of tlie act or neglect, or even if he disapproved or forbade 
 it, he is equally liable if the act be done by the servant in the course of 
 liis eraployment.2 
 
 Tested by these considerations, it is quite clear that the instruction 
 given by the court to the jury was erroneous, and that the verdict should 
 be set aside and a new trial granted. But the court is of the opinion 
 tiiat the principles of law ap|)lical)le in litigations growing out of the 
 relations of principal and agent or master and servant are not the prin- 
 ciples which fully define the rights, duties, obligations, and liabilities of 
 
 Maund v. Monmouth Canal Co., 4 Man. & G. i Reeve's Dom. Rcl. (M ed.) 356. 
 
 A:>1; Phila. etc. K. Co. v. Derby, 14 How. 4h;5; 2 story on Agency, § 4.5'i ; Phila. etc. R. Uo. 
 
 s. fl. ante, p. 31; National Express Co. v. v. Derby, 14 How. I'r. 480; s. c. ante p. 31; 
 
 D ew, 2 Macq. H. L. Cas. 103; s. c. 33 Eng. Smith's M. &S. 152; Sleath v. Wil.soii, 9 Car. 
 
 I.iiw & Ell. 1; 1 Pat. So. App. 482; (Joff v. & 1'. (iOT ; The Xew World v. King, 10 How. 
 
 G:eat Northern R. Co., 3 El. & El. 074. 474; s. c. ante, p. 175.
 
 360 ASSAULTS UPON PASSENGERS 
 
 Pendleton v. Kinsley. 
 
 the parties to this controversy. They are not strangers bearing no 
 other relations to each other than one citizen, merely as such, bears to 
 anuther ; but the defendant was a carrier of passengers by water, and 
 the plaintiff was a passenger on board the steamer of the defendant, 
 which was engaged in carrying passengers for hire between two com- 
 mercial ports. Difficulty occurred as to making change in the sale and 
 purchase of a ticket for the trip, but the court lays that circumstance 
 out of the case, as it is clear that the omission to purchase a ticket gave 
 the clerk of the steamer no right whatever to inflict any personal vio- 
 lence on the plaintiff. Fare not having been paid by the plaintiff, the 
 carrier, if he thought proper, might have requested him to leave the 
 steamer ; and if the request had been seasonably made, and the plaintiff 
 had refused to pay or leave, the carrier might at a proper time and place 
 have stopped the steamer, and might have removed the plaintiff from 
 the steamer to the shore, taking care to use no more force than was 
 reasonably necessary for that purpose. 
 
 Nothing of the kind, however, was done or attempted, and the ques- 
 tion as to the rights, duties, obligations, and liabilities of the parties to 
 the suit must be determined solely in view of the facts as stated in the 
 commencement of the opinion. Viewed in that light, as the case must 
 be, then it appears that the clerk of the steamer demanded fare of the 
 plaintiff, and that the plaintiff having refused to pay as requested, the 
 clerk seized him by the collar, and inflicted personal violence upon him 
 in the manner and by the means set forth in the statement. Unjustifia- 
 ble as the conduct of the clerk was, the case must be viewed, as between 
 these parties, just as it would be if no dispute had arisen as to the fare, 
 and the questions to be decided are whether the defendant is liable for * 
 the injuries inflicted upon the plaintiff by the clerk, and, if so, upon 
 what ground does that liability rest. Sufficient has already been 
 remarked to show that the owner of the steamer is liable to the plaintiff 
 for the injuries inflicted upon him by the agent of the owner, but it is 
 quite important, in case of a new trial, to ascertain upon what ground 
 that liability arises, — whether merely as a principal answering for the 
 acts of his agent in the course of his employment, or as a carrier of 
 passengers answering as such, for a breach of the obligation which he 
 assumed as such carrier, that the plaintiff, as his passenger, should not 
 be ill-treated by himself or his employees, and that he and they should 
 use all due care and proper exertion to protect him, as such passenger, 
 from any degree of violence or any kind of abuse or ill-treatment from 
 other passengers, or other persons coming on board during the trip.^ 
 
 1 Flint V. Norwich etc. Transp. Co., 34 Conn. 554.
 
 BY THE carrier's SERVANTS. 361 
 
 United States Circuit Court, Rhode Island. 
 
 Ship-owners, as well as the proprietors of conveyances by land, select 
 and appoint their own agents without consulting their passengers, and 
 it is but reasonable that they should be held responsible for any act of 
 violence to the passenger of which such employees may be guilty, as 
 the moment the passenger enters the steamer or other conveyance he is 
 more or less under the control of the master or conductor, and subject 
 to their orders. Fit or unfit, humane or brutal, good-tempered or 
 morose, the passenger is comparatively helpless, and may be obliged to 
 submit for the time without any means of redress. He may have his 
 remedy against the carrier, it is said, if he can prove that the carrier 
 was negligent, or that the active person was the agent of the carrier 
 and was in the course of his employment, but, if not, he must be con- 
 tent with his remedy against the assailant of his person. Adjudged 
 cases may be referred to which support that proposition without qualifi- 
 cation, but they do not give full scope and effect to the obligation which 
 the carrier assumes towards his passenger, nor to the rights and duties 
 which those relations create and imply. 
 
 Passengers do not corftract merely for shiproom and transportation 
 from one place to another, but they also contract for good treatment, 
 and against personal rudeness and every wanton interference with their 
 persons, either by the carrier or his agents employed in the management 
 of the ship or other conveyance, and for the fulfilment of those obliga- 
 tions the carrier is responsible as principal ; and the injured party, in case 
 the obligation of good treatment is broken, whether by the principal or 
 his employees, may proceed against the carrier as the party bound ta 
 make compensation for the breach of the obligation.^ Sickness and 
 Suffering were experienced by the wife of the plaintiff, in the case of 
 Weed V. Panama Railroad Company, in consequence of the failure of 
 the train to arrive at the usual time, and the evidence showed that 
 the detention was the wilful act of the conductor. Proof of that fact 
 having been given, the defendants contended that they were not liable ; 
 but the court refused so to instruct the jury, and the Court of Appeals 
 held that the prayer for instruction was properly refused, as the proof 
 offered that the act of the conductor was wilful constituted no defence 
 to the action. High authority exists, if any be needed, in support of 
 the proposition that the owners of a vessel are responsible for the whole 
 conduct of the master while he is on board and in command of the 
 vessel, unless his acts amount to a criminal offence.^ Civilly speaking, 
 
 1 Chamberlain v. Chandler, 3 Mason, ardi, 5 La. 431 ; Block v. Bannerman, 10 La. 
 246; Nieto v. Clark, 1 Cliff. 145; Weed v. An. 3. 
 Panama R. Co., 17 N. Y. 362; Keene v. Liz! 2 The Nimrod, 7 Notes of Cas. ,559.
 
 o(i2 ASSAULTS UPON PASSENGERS 
 
 Pendleton v. Kinsley. 
 
 8a3-s Dr. Lushington, in that case the owners are responsible for any 
 deviation of the master from that line of conduct which it behooves him 
 to perform, not simply in the navigation of the vessel and in the care 
 of his own seamen, but in the care of those who may be thrown on 
 board his ship, even by an accident, as was the fact in that case. Most 
 of the recent cases in which the principle involved in such a controversy 
 is considered, proceed upon the ground that where the misconduct of 
 an agent causes a breach of the obligation or contract of the principal, 
 then the principal is liable in an action to the injured party, whether 
 such misconduct be wilful or malicious or merely negligent ; and it 
 would seem that it must be so, as the cause of action arises from the 
 breach of the obligation, and if so, it cannot make any difference 
 whether the breach was occasioned by the act of the principal or of 
 his employees. Qui facit per aliuni, facit per se.i 
 
 Conductors and emploj-ees of a railroad company represent the com- 
 pany in the discharge of their functions, and, being in the line of their 
 duty in collecting the fare or taking up tickets, the corporation is liable 
 for any abuse of their authority, whether of omission or commission ; 
 and the same rule must be applied in a suit against the owner of a 
 steamer as the carrier of passengers for the misconduct of the master, 
 as the owners of a vessel carrying passengers for hire are liable for 
 breaches of duty of the master to the passengers equally as they are 
 in case of merchandise committed to their care.^ Owners are liable for 
 the conduct of the master, as master, during the voyage, and for any 
 ill-treatment of the passengers by the master in his capacity as such, 
 a remedy may be had against the vessel herself. ^ Vessels carryiivg 
 passengers for hire, says Mr. Justice Nelson, stand on the same foot- 
 ing of responsibility as those carrying merchandise, the passage-money 
 in the former case being the equivalent for the freight in the latter ; 
 that the vessel as well as the owner is responsible for a breach of a 
 contract with the passenger. ^ Repeated decisions of the Supreme 
 Court of Massachusetts are to the same effect, as will sufficiently appear 
 by the following citations: Moore v. Fitchburgh Railroad Company,^ 
 Hewett V. Swifts Wherever there is a contract between the master and 
 another, the master, says Hoar, J., is responsible for the acts of his 
 servant in executing the contract, although the act is fraudulent and 
 
 1 MUwaukee etc. R. Co. v. Finney, 10 Wis. Lizardi, 5 La. 431; Sanford v. Eighth Avenue 
 388; Goddard v. Grand Trunk K. Co., 57 Me. K. Co., 23 N. Y. 344. ■ Abb. Adm. 257. 
 202; Pittsburgh etc. R. Co. v. Hinds, 53 Pa. •• The Aberfoyle, 1 Blatchf. 360; Pars, on 
 St. 515; 8. c. ante, p. 295. Ship. 30; The Revenge, 3 Wash. 267; Ralston 
 
 2 3 Kent's Coram, (ed. 1866) 160; Baltimore v. Steamer State Rights, Crabbe, 46. 
 etc. R. Co. V. Blocher, 27 Md. 286; Keene v. » 4 Gray, 465. « 3 Allen, 423.
 
 BY THE carrier's SERVANTS. 363 
 
 Wanton and Malicious Trespasses of Ser\iints. 
 
 one without his consent.' Examined in any point of view, the court is 
 of opinion that the instruction given to the jury was erroneous, and the 
 verdict is set aside and a 
 
 New trial granted. 
 
 NOTES. 
 
 § 1. Wanton and Malicious Trespasses of Servants. — In McManusy. Crick- 
 ett,^ Lord Kenyox greatly desired to settle the law in regard to the liability of 
 the master for the acts of his servants, saying: " It is a question of very general 
 concern, and has been often canvassed: but I hope at last it will be at rest." 
 This case is authority for the proposition that a master is not liable for the mali- 
 cious acts of his servant, which, generally speaking, is true ; but the proposition 
 has many qualifications, so that the case establishes only a general principle. 
 This principle, too, has more especial application in actions of tort for injuries 
 inflicted by the servants upon third persons, where the master owes no especial 
 <luty of protection to the injured person, other than that which each citizen owes 
 to every other, as expressed in the maxim, Sic utere tuo ut alienum non Icedas. 
 But when by express contract the master owes a duty of protection to third 
 persons, or when this obligation is implied by virtue of another contract, as that 
 between carrier and passenger, the former being under the obligation to exer- 
 cise the highest degree of care of which human foresight is capable, for the 
 benefit of the latter, the master cannot, by entrusting the performance of this 
 duty to others, shield himself from the consequences of his servants' miscon- 
 duct by asserting that they have acted in disregard of instructions, or otherwise 
 have proved false to their trust. '^ 
 
 It is not consonant with the principle of respondeat superior that an exception 
 or qualification of this kind should be introduced to completely obviate the 
 salutary operation of the rule. Corporations can act only through their agents, 
 and if the torts of such agents constitute no wrong on the part of the corporate 
 organization, then it follows that a corporation can do no wrong. Said Ry.vn, 
 C. J., in a late and most instructive case upon this point: * " Wliere was the cor- 
 poration, and by whom represented, as to this contract and this passenger? Not, 
 surely, in some foreign board-room, by directors making regulations and appoint- 
 ing agencies for the corporate business. They could not perfoi'm this contract. 
 Not, surely, in some distant office, by a superintendent or manager issuing the 
 orders of the directors to liis subordinates. He could not perform this contract. 
 Quoad this contract and this passenger, the corporation was present on this 
 train, to keep it and to care for her, represented by the officers of the train, who 
 possessed, pro hac vice, the whole power and authority, and were the living 
 
 ' Howe V. Xewmarch, 12 Allen, 55; Sey- * 1 East, 106. See2Thomp. onNeg.,p. 865. 
 
 mour V. (Jreenwood, 7 Hurl. & N. :'.57; » Phila. etc. R. Co. v. Derby, 14 How. 468, 
 
 Ayi-rigg's Executors v. New York etc. U. Co., ante, i>. 31. 
 
 30 X. J. L. iCl; Pennsylvania It. Co. v. Van- < Craker v. Chicago etc.R. Co., 36 Wis. 657, 
 
 diver, 42 Pa. St. :}70. 673.
 
 364 ASSAULTS UPON PAS^ENGEK. 
 
 Notes. 
 
 embodimeut of the ideal entity which made the contract and was bound to keep 
 it. And is appellant here to contend that it has no responsibility for the flagrant 
 violation of the contract, which the respondent paid it to make and to keep, by 
 its sole representative appointed to keep it on its behalf? Like the English 
 crown, it lays its sins upon its servants, and claims that it can do no wrong. We 
 cannot bend down the law to such a convenience. The appellant tortiously 
 broke this contract as surely as it made it, — committed this tort as surely as it 
 made the contract." 
 
 What duties, besides that of transportation merely, rest upon the carrier may 
 be illustrated by the frequently approved language of an enlightened jurist: "An 
 owner of a steamboat or railroad, in this respect, is in a condition somewhat 
 similar to that of an innkeeper, whose premises are open to all guests. Yet 
 he is not onlj^ empowered, but he is bound so to regulate his house, as well with 
 regard to the peace and comfort of his guests who there seek repose, as to the 
 peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct 
 therein ; and of course he has a right, and is bound to exclude, from his premises 
 all disorderly persons, and all persons not conforming to regulations necessary 
 and proper to secure such quiet and good order." ^ An exemplification of these 
 remarks is found in the rule which enjoins upon the carrier the duty of protect- 
 ing the passengers from the assaults of fellow-passengers or trespassers during 
 the subsistence of the contract of transportation.^ 
 
 Such being the liability of the carrier for the conduct of strangers, can it be 
 said that he is less responsible for acts of violence of his own servants? A 
 fortiori, it would seem that he is not.^ The wilfulness 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. 
 Thus, in Craker v. Chicago, etc. Bailroad Company,^ the defendant's conductor 
 forcibly seized and kissed a young lady while a passenger on his train, for which 
 act the railroad company was held responsible. In Milwaukee, etc. Railroad 
 Company v. Finney,^ it was urged that in no case could a right of action arise 
 against the principal for the wilful or malicious conduct of the agent, unless it 
 was previously authorized or subsequently ratified by him. The court stated 
 that, on a careful examination of the position, they were satisfied that it was 
 incorrect ; that the proper rule was, that where the misconduct of the agent 
 caused a breach of the obligation or contract of the principal, the principal 
 would be liable, whether such conduct be wilful or malicious, or merely negli- 
 gent.' 
 
 In Keene v. Lizardi,^ it was stated that the owners of vessels carrying pas- 
 
 1 Shaw, C. J., in The Commonwealth «. v. Billings, 8 Bush, 147. See Chap. VIIL, 
 Power, 7 Mete. 596, 601, Citing Markham v. ante, where this matter is considered at 
 Brown, 8 N. H. 532. length. 
 
 2 Pittsburgh etc. R. Co. v. Hinds, ante, p. a Goddard v. Grand Trunk R. Co., 57 Me> 
 295; Putnam v. Broadway etc. R. Co., 55 N. 202. 
 
 Y. 108; Flint v. Norwich etc. Transp. Co., 34 * Weed v. Panama E. Co., 17 N. Y. 362. 
 
 Conn. 554 ; s.c.6 Blatchf. 158 ; Pittsburgh etc. 6 36 Wis. 657. « 10 Wis. 3S8. 
 
 R. Co. V. Pillow, 76 Pa. St. 510; New Orleans ' See also Quigley v. Central Pacific B. 
 
 etc. R. Co. V. Burke, 53 Miss. 200; s. c. 4 Co., 11 Nev. 350. 
 
 Cent. L. J. 539; Holly v. Atlanta Street R. 8 5 La. 431; s. c. 6 La. 315. See also Block 
 
 Co. (Sup. Ct. Ga.), 7 Reporter, 460; Sherley v. Bannerman, 10 La. An. 1; St. Amand «.
 
 BY THE carrier's SERVANTS. 365 
 
 "Wanton and Malicious Trespasses of Servants. 
 
 sengers for money subjected themselves to the same responsibility for a breach 
 ■of duty in their officers to those passengei-s, as they would for their misconduct 
 in regard to merchandise committed to their care.' The case of Goddard v. 
 Grand Trunk Bailway '' is instructive upon this point. The plaintiff having 
 surrendered his ticket to a brakeman authorized to receive it, was afterwards 
 approached by the person to whom he had given it, and accused of endeavoring 
 to avoid the payment of his fare. Furthermore, this employee began a tirade 
 of abusive language, which was supplemented by the most atrocious conduct. 
 The plaintiff, a person in ill-health, reclined in his seat, wholly unable to respond 
 to the charge or make any explanation ; the servant, bringing his fist in close 
 proximity to the plaintiff's face, shaking it violently, threatened to spill his 
 brains on the spot if he opened his mouth. This extraordinary exhibition was 
 not momentary, but was prolonged for the space of about a quarter of an hour, 
 in the presence of several passengers of both sexes. The ticket was subse- 
 quently produced and identified by the conductor, to whom the brakeman had 
 delivered it only a few moments before. At the trial, the defendants claimed 
 that they were wholly irresponsible for their servant's conduct, on the ground 
 that it was wilful and malicious, and wholly unauthorized by them. But said 
 Walton, J.: "The fallacy of this argument, when applied to the common car- 
 rier of passengers, consists in not discriminating between the obligation which 
 he [the carrier] is under to his passenger, and the duty which he owes a stranger. 
 It may be true that if the carrier's servant wilfully and maliciously assaults 
 a stranger, the master will not be liable; but the law is otherwise when he 
 assaults one of his master's passengers. * * * The law seems to be now 
 well settled that the carrier is obliged to protect his passenger from violence 
 and insult, from whatever source arising. He is not regarded as an insurer of 
 his passenger's safety against every possible source of danger; but he is bound 
 to use all such reasonable precautions as human judgment and foresight are 
 capable of to make his passenger's journey safe and comfortable." ' 
 
 Lizardi, 4 La. 243. In order to Justify the berlain v. Chandler, 3 Mason, 242, where, in 
 
 imprisonment of a passenger on shipboard regard to the contract of carriage, he said: 
 
 'in the ground that the measure was neces- "In respect to females, it proceeds yet 
 
 ;iry for the due preservation of discipline, farther; it includes an implied stipulation 
 
 it must appear that there was such real against general obscenity, that immodesty 
 
 appearance of danger to the di8cii)line of approach which borders on lascivious- 
 
 i)f the ship from the language or con- ness, and against that wanton disregard of 
 
 duct of the plaintiff as might induce a the feelings which aggravates every evil, 
 
 reasonable man to believe in the exist- and endeavors by the excitement of terror 
 
 ence of such danger. Aldworth v. Stew- and cool malignancy of conduct to inflict 
 
 art, 4 Fost. & Fin. 9.57; King v. Franklin,! torture upon susceptible minds." These 
 
 Post. & Fin. .360; I'rendcrgast v. Conipton, 8 views are reiterated by Clifford, J., in Nieto 
 
 Car. & P. 454. Conduct unbecoming a gen- v. Clark, 1 Cliff. 145. 
 
 tleman will justify the captain in excluding 2 57 Me. 203. Malecek v. Tower Grove 
 
 a passenger from the table, although he has etc. R. Co., 57 Mo. 18, exhibits an almost 
 
 contra(;ted lor a place at such table. Prea- identical stale of facts. See also Sherley 
 
 dergast V. Compton,»?ipra. v. Billings, 8 Bush, 147, where Goddard v. 
 
 ' In this case, the plaintiff and his wife Grand Trunk Railway is expressly approved, 
 
 were treated with great indignity and insult, ^ 57 Me. 213. See also the remarks of 
 
 arising purely from the malice of the com- Willard, J., in Brand v. Troy etc. U. Co., 8 
 
 manding officer. The decision of the court Barb. 368, 378. The same learned justice 
 
 was based upon that of story, J., in Cham- who expressed the enlightened views above
 
 366 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 The Supreme Judicial Court of Massachusetts have adopted the same rule, as 
 Avill be seen by an examination of Bryant v. Rich.^ The servants of the carrier 
 in this case assaulted and beat a passenger simply because he had remonstrated 
 against the t3'rannical conduct of the servants of the carrier towards a fellow- 
 passenger, his relative. The plaintiff had made no show of force, and the assault 
 was wholly inexcusable. After citing with approval the case of Goddard v. 
 Ch'and Tnmk Bailway,^ Chapman, C. J., continued: "The interpretation of the 
 contract of the carrier which is given in the cases above cited is not unreason- 
 able. It is not more extensive than the necessities of the case require. Nor is 
 it difficult to perform. The cases in which it is violated by servants, even of the 
 lowest grade, on board a ship or engaged in the management of a railroad train, 
 are rare, and the carrier, rather than the passenger, ought to take the risk of 
 such exceptional cases, — the passenger being necessarily placed so much within 
 the power of the servants."^ Mr. Justice Clifford reviewed the foregoing 
 decisions in Pendleton v. Kinsley,* and reached the same conclusion. 
 
 § 2. Servant acting in the Scope of Ms Emplo37inent. — If the carrier is to 
 be held responsible for the wilful, wanton, and malicious act of his servant 
 which amounts to a breach of the contract of carriage, it would seem to be 
 unnecessary to consider whether, at the time the unlawful act of the ser- 
 vant took place, he was acting in the scope of his employment and according 
 to the instructions of his master ; also, whether the act was in any manner sub- 
 sequently ratified by the master. There are many cases, however, which do not 
 go to the extent of declaring that the cai'rier shall be held responsible for the 
 wilful misconduct of his servant when his act ftiay be considered as outside of 
 the legitimate scope of his duties, although if the act could in any manner be 
 imputed to the carrier personally, it would amount to a breach of the contract for 
 safe carriage. Thus, in Isaacs v. Third Avenue BaiJroad Company,^ the plaintiff 
 came to the rear platform of a street car, and desired the conductor to have the 
 car come to a full stop in order that she might get off ; to which request he 
 replied that the car was stopped sufficiently, although it was yet in motion. The 
 plaintiff told the conductor that she would not get off until the the car had com- 
 pletely stopped. Thereupon the conductor seized the plaintiff by the shoulder 
 with both hands, and threw her out with such violence that her leg was broken 
 by her fall upon the pavement. The court held that the principal was not 
 responsible for this misconduct of its servant, and assigned as a reason, inter 
 alia, that "the defendant could not lawfully have done it, and therefore no 
 authority could be implied in the conductor to do it." The facility with 
 which the Gordian knot of respondeat superior is thus cleft to the heart must be 
 
 set forth, again applied them in the sub- yet, the struggle having ended, the company 
 
 sequent case of Hanson v. European etc. R. was to be held responsible for the wanton 
 
 Co., 62 Me. 84, where a brakeraan, having act of its servant in renewing the strife. 
 
 been worsted in a difficulty with a pas- i 106 Mass. 180. - 57 Me. 202. 
 
 senger, after the quarrel had ended came » loe Mass. 189. See also the case of 
 
 up from behind and inflicted several blows Ramsden v. Boston etc. R. Co., 104 Mass. 
 
 upon the passenger's head with an iron 117. 
 
 Btove-poker. The court held that although * 3 Cliflf. 416, ante, p. 352. 
 
 the brakeman was obstructed in the per- & 47 N. Y. 122. See also Evansville etc. 
 
 formance of his duty in the first instance, R. Co. v. Baum, 26 Ind. 70.
 
 BY THE carrier's SERVANTS. 367 
 
 Servant when acting within the Scope of his Employment. 
 
 startling to even the superficial thinker. If we are to assume that a corporation 
 can do no wrong, then it would seem to be useless to discuss whether the 
 wrongs of its agents can be imputed to it. 
 
 In Parker v. Ene Bailroad Company,^ a conductor upon one of the defendant's 
 trains took up the tickets of the plaintiff and his wife, telling them that the train 
 did not generally stop at their destination, but that on that occasion it probably 
 would do so, to take in water. The train did not stop as conjectured, and after 
 it had gone by the plaintiff's destination the conductor came into the car where 
 the plaintiff and his wife were and used abusive language to him. The court 
 held that while so doing he was not in the performance of his duties, and there- 
 fore the corporation could not be held liable ; saying at the same time that if the 
 words had been uttered in the first instance while the conductor was taking the 
 tickets, the decision would have been otherwise. This distinction appears to be 
 entirely destitute of force. In a Kentucky casCj^the clerk of the defendant's steam- 
 boat was collecting fares from deck-passengers. The plaintiff had just paid his 
 fare, when the clerk charged him with having hidden in order to evade paj-ment, 
 and immediately afterwards assaulted him, putting out one of his eyes. The 
 defendant was held to be responsible for this conduct, the court saying in regard 
 to the "scope of emplojTnent: " "It must be borne in mind that from the 
 moment the contract between the carrier and passenger begins, until it ends> 
 the official actions of the officers of the boat, touching the payment of passage- 
 money, or the manner in which the passengers shall conduct themselves, or the 
 enforcement of the regulations prescribed for the government of the vessel, — 
 in short, all intercourse between the officers and passenger naturally and legiti- 
 mately growing out of the relationship existing between them, — may properly 
 be said to come within the course of their employment, and their actions in the 
 premises, if legal and proper, are within the scope of their authority." ^ 
 
 Other New York cases, decided before and since the decision of the Court of 
 Appeals in Isaacs v. Third Avenue Bailroad Company,* and that of the Supreme 
 Court in Parker v. Erie Bailroad Company,'' are plainly irreconcilable with these 
 cases.* A labored effort was made by the court, in a subsequent case,'' to distin- 
 guish the case of Isaacs v. Third Avenue Bailroad Company. A contrary conclu- 
 sion, however, was reached upon identical facts. The latest decisions of the 
 Court of Appeals are quite satisfactory upon the liability of the master for the tor- 
 tious acts of his servant. Bounds v. Delaware, etc. Bailroad Company^ will 
 probably be hereafter regarded as a leading case upon this subject. The plaintiff 
 in this case, a boy twelve years of age, jumped upon the platform of a baggage- 
 car on the defendants' road, intending to ride to a place where the cars were 
 being backed to make up a train. The defendants' rules forbade all persons, 
 except certain employees, riding on baggage-cars, and directed baggagemen to 
 rigidly enforce the rule. As the plaintiff 's evidence tended to show, the defend- 
 ants' baggageman ordered him off while the car was in motion. Wood was 
 
 I 6 Hnn, 67. 46 N. T. 23; Jackson v. Second Avenue R. 
 
 » Sherley v. Billings, 8 Bush, U7. Co., 47 N. Y. 274 ; Meyer v. Second Avenue R. 
 
 8 Id. 153. Co., 8 Bosw. 305 ; Weed v. Panama E. Co., 17 
 
 * Supra. 6 Supra. N. Y. 362. 
 
 • Sandford v. Eighth Avenue R. Co., 23 N. • Shea v. Sixth Avenue R. Co., 62 N, Y. 180. 
 Y. 343; Higgins v. Watervliet Turnpike Co., s 64 jj. y. 129; «. c. 3 Hun, 329.
 
 3G8 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 piknl aloiiii the track for a distance of over one hundred feet, and it was at this 
 phice that the plaintiff was ordered to get off. The plaintiff replied to this 
 demand, "I can't, — the wood is right here; I want you to help me," and 
 thereupon the baggageman kicked him off. The plaintiff fell against the wood 
 and rolled back under the car, the wheel of which passed over and crushed his 
 leg. The defendants were held liable for this injury. Ajstdkews, J., stated the 
 law to be as follows : — 
 
 "It is, in general, sufficient to make the master responsible that he gave to the 
 servant an authority or made it his duty to act in respect to the business in 
 which he was engaged when the wrong was committed, and that the act com- 
 plained of was done in the course of his employment. The master, in that case, 
 will be deemed to have consented to and authorized the act of the servant, and 
 he will not be excused from liability although the servant abused his authority, 
 or was reckless in the performance of his duty, or inflicted an unnecessary 
 injury in executing his master's orders. The master who puts the servant in a 
 place of trust or responsibility, or commits to him the management of his busi- 
 ness or the care of his property, is justly held responsible when the servant, 
 through lack of judgment or discretion, or from infirmity of temper, or under 
 the infliuence of passion aroused by the circumstances and the occasion, goes 
 beyond the strict line of his duty or authority, and inflicts an unjustifiable injury 
 upon another." 1 These views were reiterated in a subsequent case.'' 
 
 It will be noticed that in the case in which the above language was used the 
 plaintiff was a trespasser, but this circumstance did not prevent a recovery. If 
 the law is such in regard to the conduct of a carrier's employees towards strangers 
 and trespassers, it would seem clear, upon principle, that the measure of respon- 
 sibility of the master for the tortious conduct of his servant towards those 
 whom he has contracted to protect must be judged by a higher standard even, 
 and therefore ought to include a liability for assaults of every description upon 
 passengers. 
 
 There is an obiter dictum in a Missouri case ' indicating an adherence to the 
 same objectionable views enunciated in the New York case we have noticed. 
 The court said in this case: "If the conduct of this driver were wilful and 
 malicious, with intent to injure the plaintiff, he might be liable to indictment for 
 assault with intent to kill, or some other criminal offence ; but his employer was 
 not responsible for his crimes, nor liable for his acts of wilful and malicious 
 trespass. The company was answerable only for his negligence, or his incapac- 
 ity or unskilfulness in the performance of the duties assigned to him." * 
 
 > e4 \. Y. 134. etc. R. Co., 36 Wis. 657, 669: "It would be 
 
 * Cohen v. Dry Dock etc. R. Co., 69 N. Y. cheap and superficial morality to allow one 
 
 170; s. c. 8 Jones & Sp. 368. owing a duty to another to commit the per- 
 
 3 McKeon v. Citizens' R. Co., 43 Mo. 79. formance of his duty to a third, without 
 
 See also Evansville etc. R. Co. v. Baum, 26 responsibility for the malicious conduct o: 
 
 Ind. 70; Great Western R. Co. v. Miller, 19 the substitute in performance of the duty. 
 
 Mich. 305; Priest v. Hudson etc. R. Co., 40 If one owe bread to another, and appoint an 
 
 How. I'r. 4.56. agent to furnish it, and the agent, of malice, 
 
 < 42 Mo. 88. The case of Malecek r. Tower fui-nish a stone instead, the principal is 
 
 Grove etc. R. Co., 57 Mo. 17, would seem to responsible for the stone and its conse- 
 
 have been decided on a principle quite tlie quences. In such cases malice is negli- 
 
 reverse of the above. Compare also the gence. Courts are generally incliningto this 
 
 language of Ryan, C. J.,in Craker i>. Cliicago view, and thi'j ci>art long since .affirmed it."
 
 BY THE carrier's SERVANTS. 369 
 
 Servant when acting within the Scope of his Emplo5'ment. 
 
 It is sometimes stated that " when the sen-ant acts within the scope of his 
 employment, and is engaged in the business of the corporation, — in other words, 
 doing wliat he is employed to do, — and violates the rights of a passenger, there is 
 no valid reason why the corporation should not be held responsible for his acts, 
 simply because such servant acted wilfully, wantonly, or maliciously in the com- 
 mission of the act." ^ This would seem to be undoubtedly good law, as it is 
 consonant with the well-recognized principle that, even as between the principal 
 and the community at large, a master will be responsible for the unlawful man- 
 ner in which the servant executes his master's business.^ Furthermore, it is 
 entirely in harmony with the position towards which authorities of late seem to 
 tend, — that the carrier is responsible for the wilful, wanton, or malicious con- 
 duct of his servant towards a passenger, whether acting in the scope of his em- 
 ployment or not.* 
 
 The conductor of a railroad train, from the necessity of the case, represents the 
 corporation in the control of the engine and cars, the regulation of the conduct 
 of passengers as well as of the subordinate servants of the corporation, and the 
 collection of fares. To him is intrusted the discretion to be exercised in the 
 ejection of passengers and others.* In Thorpe v. New York, etc. Bailroad 
 Company,'^ the defendant entered into a contract with a proprietor of drawing- 
 room cars, by which the latter agreed to place upon the defendant's road certain 
 drawing-room cars at his own expense, and keep the interiors thereof in good 
 order, the conductors and porters of the same being paid by the proprietor of 
 the cars, but carried by the defendant free of expense. The defendant's conduc- 
 tors had the right to enter the car for any purpose connected with the man- 
 agement of the train, for the collection of fares, and to the assistance of the 
 conductors and porters of these cars in enforcing good order, but for no other 
 purpose. In consideration of the hauling and making of certain repairs on such 
 cars, the defendant received twenty per cent of the gross receipts from them. 
 In an action by the plaintiff against the defendant for an alleged wrongful 
 removal from the drawing-room car by the porter of the same, it was held that 
 the defendant was liable for any injuries sustained by him.® In Bayley v. Man- 
 chester, etc. Bailway Company,'' it was held that a principal who puts his ser. 
 vant in his place to do a class of acts in his absence 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 manner in which it is to be done ; consequently 
 he is answerable for the wrong of the person so intrusted, either in the manner 
 of doing such an act, or in doing it under circumstances which do not justify it, 
 
 > Quigley v. Central Pacific R. Co., 11 Nev. p. 352; Craker v. Chicago etc. R. Co., "6 Wi.". 
 
 3.50, 363; Atlantic etc. R. Co. v. Dunn, 19 657; Bryant v. Rich, 106 Mass. 180; Sherley 
 
 Ohio St. lG-2; Passenger R. Co. v. Young, 21 v. Bilhngs, 8 Bush, 117; Goddard v. Grand 
 
 Ohio St. 51S; Indianai)olis etc. R. Co. v. An- Trunli R. Co., 57 Me. 202. 
 thony, 43 Tnd. 183; Jeffersonville etc. R. Co. ■• Indianapolis etc. R. Co. v. Anthony, 43 
 
 r. Rogers, 38 Ind. IIG; llewett v. Swift, 3 Ind. 188; Jeffersonville R. Co. v. Rogers, 38 
 
 Allen, 420; Pittsburgh etc. R. Co. v. Slusser, Ind. 116; O'Brien v. Boston etc. R. Co., ante, 
 
 19 Ohio St. 157; New Orleans etc. R. Co. v. p. 22; Travers v. Kansas etc. R. Co., 63 Mo. 
 
 Hurst, 36 Miss. 660; McKinley v. Chicago etc. 421 ; I'.altimore etc. R. Co. v. Blocher, 27 Md. 
 
 R. Co., 44 Iowa, 314 ; Pittsburgh etc. R. Co. v. 277; Brown v. Hannibal etc. R. Co., 66 Mo. 
 
 Theobald, 51 Ind. 246. 588. '•> 13 Hun, 70. 
 
 2 2 Thomp. on Neg., p. 884. " Sec also Kinsley v. Lake Shore etc. R. 
 
 » Pendleton v. Kinsley, 3 Cliff. 316, ante, Co., 125 Mass. 54. ' L. R. 7 C. P. 415, 
 
 24
 
 370 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 provided the act was not one of caprice on the part of the servant, but in the 
 course of the emploAHTient. The facts of the case were that the plaintiff, a pas- 
 seuirer on the defendants' line of railroad, was violently pulled out of a railway- 
 coach by one of the defendants' porters, who acted under a mistaken impression 
 that the plaintiff was in the wrong coach. It was held that, although the porter 
 was not expressly authorized to remove any person in the wrong coach, yet such 
 an act was properly within the scope of his employment, and for the wTongful 
 exercise of which the company were responsible.' Similarly, a person employed 
 by a railroad company to clean their cars at the terminus of the line, and to keep 
 persons out of the same while in the discharge of that duty, was held to be 
 acting within the scope of his employment, and the company accordingly liable 
 for the injury which ensued, when, for the purpose of excluding a boy who hatl 
 got upon the steps of a car while in motion, he kicked the boy's hand, which 
 was grasped about a railing, thereby loosening his hold and causing him to fall 
 between the cars, whereby he was killed.^ In Indianapolis, etc. Railroad Com- 
 pany V. Anthony,'^ it was held that an act of the servant may be within the scope 
 of his employment although unnecessary to the performance of the master's 
 service and not intended for that purpose. The case of Malecek v. Tower Grove, 
 etc. Railroad Company * shows conduct on the part of the servant which would 
 probably have been considered not within the scope of his employment but for 
 the subsequent ratification of the servant's acts by the company employing him. 
 The facts of this case are almost identical with those in Qoddard v. Grand Trunk, 
 etc. Railway Company.^ In Dreio v. Sixth Avenue Railroad Company, it was held 
 that the driver of a street car, in assisting passengers to get on board, acts in the 
 course of his employment, and makes the principal liable for negligence in so 
 doing.fi In Little Miami, etc. Railroad Company v. Wetmore,' the facts were that 
 the plaintiff, after purchasing a ticket as a passenger, applied to the defendant's 
 baggageman to have his baggage checked to his destination, and by his import- 
 unate conduct and abusive language provoked a quarrel, in which, to gratify his 
 personal resentment, the servant struck the plaintiff with a hatchet. It was held 
 that this >vrongful act could not be regarded as done in the execution of the 
 sen-ice for which he was engaged. « It was held in the Exchequer Chamber that 
 the fact that a passenger in an omnibus is struck by the driver's whip is prima 
 facie evidence of negligence by the driver in the course of his employment; and 
 even if it appears that the blow was struck at the employee of another omnibus 
 line, with whom there had been a dispute, and who had jumped on the omnibus 
 step, it is a question for the jury whether the blow was struck by the driver in 
 private spite or in supposed furtherance of his employer's interests.^ 
 
 1 This decision was afterwards affirmed the owner of a steamboat carrying a slave 
 
 in the Exchequer Chamber. L. R. 8 C. P. as a passenger was held to be not liable for 
 
 148. See also Peck v. New York etc. R. Co., an injury done to the slave by the accidental 
 
 70 N. Y. 587; s. c. 6 Thomp. & C. 436; Mc- discharge of a gun in the hands of a fi-ee 
 
 Kinley v. Chicago etc. R. Co., 44 Iowa, 314. negro who was employed as a servant on 
 
 - Northwestern R. Co. v. Hack, 66 111. 238. the boat, the free negro and the slave being 
 
 See also Healey v. City Passenger R. Co., 28 at the time of the accident on board a lighter 
 
 Ohio St. 23; Pennsylvania R. Co. v. Vandiver, alongside the boat, the former being at that 
 
 42 Pa. St. 365; Holmes v. Wakefield, 12 Allen, time engaged in no occupation pertaining to 
 
 580; Ileuett v. Swift, 3 Allen, 420. his employment. 
 
 3 48 Ind. 183. 1 57 Mo. 18. & Supra, § 1. '■> Ward v. General Omnibus Co., 42 L. J. 
 
 e 26 N. Y. 49. v 19 Ohio St. 110. (C. P.) 265; s. c. 28 L. T. (N. s.) 850 (affirming 
 
 8 In McClenaghan v. Brock. 5 Rich L. 17. 21 Wei-V. Rep. :?.>)«: 27 L. T. (N. s.) 761'>.
 
 BY THE carrier's SERVANTS. i^^l 
 
 Authority of Servant to make Arrests. 
 
 The plaintiff, while travelling in a buggy, was stopped by a blockade of 
 vehicles, the rear of his buggy resting across the defendant's street-car track. 
 While in this position and unable to extricate himself, the defendant's street car 
 came up and the plaintiff was ordered to get off the track. The plaintiff 
 explained his inability to do so, but the driver of the car, with an exhibition of 
 passion and threats of injury, drove his team on and upset the plaintiff's buggy. 
 In an action for damages, it was held that the facts of the case did not warrant a 
 finding, as a matter of law, that the act of the car-driver was with a view to 
 injure the plaintiff, and not to execute his master's business.^ In Limpus v. 
 London General Omnibus Company,"^ the driver of the defendants' omnibus drove 
 it across the road in front of a rival omnibus belonging to the plaintiff, which 
 was thereby overturned. In an action against the defendants, the driver of the 
 omnibus stated that he pulled across the plaintiff's omnibus to prevent it passing 
 him. The defendants had given instructions to their driver not to obstruct any 
 omnibus. The jury were instructed that if they believed that the defendants' 
 driver, being dissatisfied and irritated with the plaintiff 's driver, acted recklessly, 
 wantonly, and improperly, but in the course of the service and employment, and 
 doing that which he believed to be for the interest, of the defendants, they were 
 responsible ; that if the act of the defendants' driver, although a reckless driving 
 on his part, was nevertheless an act done by him in the course of his service, 
 and to do that which he thought best to suit the interest of his employers, and 
 so to interfere with the trade and business of the other omnibus, the defendants 
 were responsible; that the instructions given to the defendants' driver were 
 immaterial if he did not pursue them ; but if the act of the defendants' servant 
 was an act of his oviTi, and in order to effect a purpose of his ovm, the defendants 
 were not responsible. This direction was held to be right. 
 
 § 3. Authority of Servants of Carrier to make Arrests. — It has been decided 
 in this country and in England, that, in the absence of authority in the by-laws 
 of a railroad company, and directions to the servants to execute such by-laws, 
 the arrests which employees of a company happen to make while engaged in 
 their duties cannot be considered as acts within the scope of their employment, 
 and therefore, in case the arrest is unjustifiable, no resort can be had to the 
 company for damages.' 
 
 In Edwards v. London, etc. Railway Company,^ the question was decided for 
 the first time. The facts were that the foreman-porter of the defendant's rail- 
 way, who, in the absence of the station-master, was in charge of the station, 
 gave into custody the plaintiff, whom he suspected to be stealing the company's 
 property. Having been acquitted of this charge, he brought suit against the 
 
 1 Cohen v. Dry Dock etc. R. Co., 69 N. Y. a Commissioner of the United States, he was 
 
 170. Compare Whitakerv. Eighth Avenue R. discharged, for the reason that sufficient 
 
 Co., 51 N. Y. 295. evidence was not adduced to hold him. In 
 
 s 1 Hurl. & Colt. 526. an action against tlie company for this arrest 
 
 8 In Porter r. Chicago etc. R. Co., 41 Iowa, and assault, it was held that, in the absence 
 
 858, the employees of a railway company of any other authority from the company 
 
 Baw obstructions upon the track, and the than that to be implied from the mere rela- 
 
 plaintitf running from the place. The train tion of employerand emplojee, the company 
 
 was stopped, and the plaintitf pursued and was not liable for the act. See also Mali v. 
 
 taken into custody. On examination before Lord. 39 N. Y. 381. < L. R. 5 C. P. 445.
 
 372 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 company for the arrest. In regard to this suit, Keating, J., said : " There is no 
 evidence in the case of anything like express authority being given by the 
 defendants to Holmes, [the foreman] and if there is any evidence to fix the 
 defendants, it must be upon an implied authority resulting from Holmes's posi- 
 tion as their servant ; and that raises broadly the question whether a person in 
 the position of Holmes has implied authority to give into custody any one vphom 
 he suspects to liave stolen his master's goods. I think there is no such implied 
 authority. It is admitted that the point is new, and that there is no case in 
 which such an authority has been assumed to exist. The cases that have been 
 referred to in support of the contention are cases where a company has made 
 by-laws, and an act of Parliament has given authority to the company's servants 
 to apprehend persons committing offences against the by-laws. It has been held 
 that, under such circumstances, the servant may be considered to have authority 
 to enforce the by-laws, and to do whatever is necessary for that purpose. That 
 is the limit to which the cases have gone ; and it seems to me that it would be 
 carrjing the doctrine much further to hold that the defendants were liable in 
 this case. There seems no ground for saying that what was done was in the 
 ordinary course of business of the company, nor that it was for their benefit, 
 except in so far that it is for the benefit of all the queen's subjects that a crim- 
 inal should be convicted. If Holmes acted from a sense of the duty which rests 
 on every one to give in charge a person whom he thinks is committing a felony, 
 his conduct would in no way be connected with the defendants." i 
 
 The foregoing decision was subsequently reviewed and its authority afiirmed 
 in Allen v. London, etc. Bailway Company,'^ in which it was held that a clerk of 
 a railway company, whose duty it is to issue tickets to passengers and receive 
 money, in the absence of express authority has no implied authority from the 
 company to give into custody a person whom he suspects to have attempted to 
 rob the company's money-drawer, after the attempt has ceased.* 
 
 The matter of arrests for non-payment of fare is regulated by statute in 
 England.* Prior to the passage of the Companies Clauses Consolidation A.ct, 
 
 1 L. R. 5 C. P. 448. of the company or such other company or 
 
 s L. R. 6 Q. B. 65. party as aforesaid, and all constables, gaol- 
 
 8 Lord Blackbiu-n was inclined to think ers, and peace-otHcers, may lawfully appre- 
 
 that if robbery was going on, and could not hend and detain such person until he can 
 
 be prevented except by giving the robbers conveniently be taken before some justice, 
 
 into custody, or if the clerk had reason to or until he be otherwise discharged by due 
 
 believe that money had actually been stolen, course of law. 
 
 and he could get it back by taking the thief " § 154. It shall be lawful for any officer 
 
 into custody, and did so for that purpose, or agent of the company, and all persons 
 
 that might be within the authority of the called by him to his assistance, to seize and 
 
 person in charge of the money-drawer. On detain any person who shall have committed 
 
 this point see Van Den Eynde v. Ulster R. any offence against the provisions of this 
 
 Co., Irish Rep. 5 C. L. 6. or the special act, and whose name and 
 
 * Companies Clauses Consolidation Act, residence shall be unknown to such oflUcer 
 
 8 Vict., c. 20, § 103. See this section set out or agent, and convey him with all con- 
 
 at length in the previous chapter, § 2. venient dispatch before some justice, with- 
 
 " § 104. If any person be discovered, out any warrant or other authority than this 
 
 either in or after committing, or attempting or the special act; and such justice shall 
 
 to commit, any such offence as in the pre- proceed with aU convenient dispatch to the 
 
 ceding enactment mentioned, all officers hearing and determining of the complaint 
 
 and servants and other persons on behalf against such offender."
 
 BY THE carrier's SERVANTS. '6Td 
 
 Servant using Excessive Force. 
 
 provisions in regard to the arrest of passengers, similar to those of the general 
 act, were embraced in private acts incorporating raiiway companies. ^ By-laws 
 framed under the provisions of the statute have for their primary object the 
 protection of the company's interests ; and, therefore, when the company leave a 
 servant in charge of a station, he has implied authority to decide whether the 
 by-law shall be enforced. ^ But if the servant, in making an arrest, exceeds the 
 powers granted to the company itself in this particular, the act will be regarded 
 as beyond the scope of his employment, and the company will not be liable. 
 Thus, in Poulton v. London, etc. Bailway Company,^ the plaintiff, having taien 
 a horse by the defendants' railway to an agricultural show, was entitled, under 
 arrangements advertised by the defendants, to take the horse back free of charge, 
 on the production of a certificate. The plaintiff accordingly produced such certifi- 
 cate, and the horse was put into a box. The plaintiff took a ticket for himself, 
 and proceeded by the same train. At the end of the journey the station-master 
 demanded payment for the horse, which the plaintiff refusing to pay, he was 
 detained in custody by two policemen, under the orders of the station-master, until 
 it was ascertained by telegraph that all was right. In an action for this assault 
 and imprisonment, it was held that though a railway company had power to appre- 
 hend a person for not paying his own fare, yet in regard to goods it had power 
 only to detain them for non-payment of freight ; consequently, as the defendants 
 themselves would have had no power to detain the plaintiff on the assumption 
 that he had wrongfully taken the horse by the train without paying, there co«ld 
 be no authority implied from them to the station-master to detain the plaintiff 
 on this assumption, and they were therefore not liable for this act of the station- 
 master. 
 
 In Walker v. South-Eastern Bailway Company,^ it was held that if the servant 
 acts contrary to the regulations of the company in making an arrest, the conduct 
 of the servant cannot be imputed to the company and it will not be responsible ; 
 therefore, where the regulations of the company and instructions to its consta- 
 bles authorized the arrest of any one whom they might see committing an assault, 
 for the purpose of putting an end to the affray, but prohibited.ari*ests after the 
 affray was at an end, the company was not chargeable witii the act of one of its 
 constables in wrongfully arresting the plaintiff after a scuffle had ended.* 
 
 § 4. Use ot Excessive Force by the Servant in the Execution of the Car- 
 rier's Business. — It is a familiar rule that the master is responsible civiliter for 
 
 1 Chilton V. London etc. R. Co., 16 Mee. < L. R. 5 C. P. 640; s. c. 39 L. J. (C. P.) 346. 
 & W. 212. 6 The principles of the above decisions 
 
 2 Goff V. Great Northern R. Co., 3 El. & would seem to be at variance with the gcn- 
 El. 672; 8. c. 30 L. J. (Q. B.) 148; Moore v. eral application of the rule of respo7ideat 
 Metropolitan R. Co., L. R. 8 Q. B. 36; s. c. 42 superior. It is familiar law that a master 
 L. J. (Q. B.) 23. Contra, it would seem, are may be held responsible for his servant's 
 the earlier cases of Eastern Counties R. Oo. conduct, though he acts contrary to his 
 V. Broom, 6 Exch. 314, and Roe v. Birken- orders, or uses excessive force, or performs 
 head etc. R. Co., 7 Exch. 36, referred to his duties in a spirit of wantonness. I'hUa. 
 disparagingly in Goff v. Great Northern R. etc. R. Co. v. Derby, ante. p. 31; Seymour 
 Co., mpra, and very unsatisfactorily distin- v. Greenwood, 7 Hurl. & X. 3.'>5 (afTirming s. 
 guished from the facts in that case. c. 6 Hurl. & X. 359) ; I>impus v. General Om- 
 
 3 L. R. 2 Q. B. 534. nibus Co., 1 Hurl. & Colt. .'.26.
 
 374 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 the wrongful act of the servant causing injury to a third person, whether the act 
 was one of negligence or positive misfeasance, provided the servant was at the 
 time acting for the master, and within the scope of the business intrusted to 
 him ; ' and that, too, although the servant in doing it departed from the instruc- 
 tions of his master.2 The foregoing rule is of general application, and is true 
 whether the person suffering from such wrongful act of the servant is one to 
 whom the carrier owes a duty of protection, or a member of the community at 
 large, or a trespasser. Therefore, the rule is general that when a master has 
 intrusted to his servant the performance of a duty, he will be liable as principal 
 for the use of excessive force in the performance of that duty. The act of the 
 servant is considered not the less authorized because the authority conferred 
 has been abused. Thus, in Bamsden v. Boston, etc. Bailroad Company,'^ a rail- 
 road company was held responsible for an assault by the conductor of one of its 
 trains, in seizing, or attempting to seize, the property of a passenger in pay- 
 ment of his fare ; and in Passenger Bailroad Company v. Young,*^ for violently 
 and unreasonably expelling the plaintiff and his wife from a car of the defend- 
 ant's street railroad. 
 
 A passenger who is lawfully upon a railroad train and has paid his fare has 
 the right to offer such resistance to an attempt on the part of the conductor to 
 remove him, especially when the train is in motion, as may be necessary to pre- 
 vent his being ejected; and if, in consequence of such resistance, extraordinary 
 force becomes necessary and is used to remove him, and he is injured thereby, 
 he can recover of the corporation for such injury.* In Peck v. New York, etc. 
 Bailroad Company,^ a railroad corporation was held responsible for the use of 
 excessive force by an employee in resisting the efforts of the plaintiff to enter 
 the ladies' car contrary to regulations which it was admitted the defendant had 
 a right to establish and enforce. 
 
 In Seymour v. Greenwood,'' the Court of Exchequer Chamber held that the 
 carrier was liable for an injury caused by the needlessly violent expulsion fi'om 
 an omnibus of a person who was drunk, who had refused to pay his fare, and had 
 assaulted the guard; and in Sanford v. Eighth Avenue Bailroad Company,'^ the 
 action was brought for damages resulting from the death of the plaintiff's intes- 
 tate by his being thrown from a car of the defendant by the conductor while the 
 car was in motion. The deceased refused to pay his fare, and for that reason 
 
 1 Higgins V. Watervliet Turnpike Co., 46 » 104 Mass. 117. 
 
 N. Y. 23 ; Rounds v. Delaware etc. R. Co., 64 < 21 Ohio St. 518. See also Turner v. North 
 
 X. Y. 129; Cohen v. Dry Dock etc. R. Co., 69 Beach etc. R. Co., 34 Cal. 594. 
 
 N. Y. 170; Pennsylvania R. Co. v. Vandiver, » English v. Delaware etc. Canal Co., 66 N. 
 
 42 Pa. St. 365; Sandford v. Eighth Avenue R. Y. 454; s. c. 4 Hun, 683. See also Sanford v 
 
 Co., 23 -V. Y. 343; Jackson v. Second Avenue Eighth Avenue R. Co., 23 X. Y. :?43. 
 
 R. Co., 47 N. Y. 274 ; Lovett v. Salem etc. R. (• 70 X. Y. 587 ; «. c. 6 Thomp. & C. 436. See 
 
 Co., 9 Allen, 557; Holmes v. Wakefield, 12 also Bayley v. Manchester etc. R. Co., L. R. 
 
 .Vllen, 5S1; Moore v. Fitchburg R. Co, 4 7 C. P. 415 (affirmed in Exchequer Chamber, 
 
 I .ray, 465; Xew Orleans etc. R. Co. v. Bailey, L. R. 8 C. P. 148) ; McKinley v. Chicago etc. 
 
 40 Miss. 4.53; Ramsden v. Boston etc. R. Co., R. Co., 44 Iowa, 314. 
 
 Iu4 Mass. 117; Williamson v. Grand Trunk • 7 Hurl. & N. 355; s. c. 30 L. J. (Exch.) 
 
 R. Co., 17 Upper Canada C. P. 615. 327; 9 Week. Kep. 785; 4 L. T. (x. S.) 833, 
 
 2 Higgins V. Watervliet Turnpike Co., (affirming s. c. 6 Hurl. & N. ;?59; 30 L. J. 
 mpra; PhUa. etc. R. Co. v. Derby, 14 How. (Exch.) 189; 7 Week. Rep. 785.) 
 
 468 ; s. c. ante, p. 31. 8 23 N. Y. 343.
 
 BY THE CARRIER'S SERVANTS. 
 
 375 
 
 Circumstances justifying Expulsion of Passenger. 
 
 the conductor ejected him. The court held that the conduct of the intestate 
 justified the conductor in expelling him from the car in a proper manner, but 
 not when the car was in motion. Comstock, C. J., said: ^ "The case is there- 
 fore to be stated thus : The defendants, by their servant, were guilty of a personal 
 and intentional assault upon the intestate. That assault, as we think, was not 
 in law justified by the facts, and they are consequently without a legal defence. "^ 
 In Bounds v. Delaware, etc. Bailroad Company,''^ the court said:* "The fact 
 that the plaintiff was a trespasser on the cars is not a defence. The lad did not 
 forfeit his life or subject himself to the loss of his limbs because he was wrong- 
 fully on the car. The defendant owed him no duty of care by reason of any 
 special relation assumed or existing between the company and him, but he was 
 entitled to be protected against unnecessary injury by the defendant or its 
 servants in exercising the right of removing him, and especially from the unnec- 
 essary and unjustifiable act of the brakeman, by which his life was put in peril 
 and which resulted in his losing his limb." ^ 
 
 § 5. Resume of tlie Circumstances justifying Ejection of Passenger. — A 
 great variety of circumstances will have this effect. The conduct of the passen- 
 ger may be in violation of lawful police regulations ; ^ or he may be a person 
 known to be of a disreputable and vicious character, and therefore disentitled 
 to demand transportation.' The passenger may refuse to exhibit or deliver up 
 Ms ticket when properly requested ; ® or insist that he shall ride upon an improper 
 
 1 Jd. 346. 
 
 2 If the assistants employed by a con- 
 ductor of a railroad train strike a passenger 
 unjustifiably in expelling him, the corpora- 
 tion is liable, although the blows were 
 struck against the conductor's order. Cole- 
 man V. New York etc. R. Co., 106 Mass. 160. 
 
 3 64 N. Y. 129. -1 Id. 138. 
 
 s See also Healey v. City Passenger R. Co., 
 28 Ohio St. 23; Pennsylvania R. Co. v. Van- 
 diver, 42 Pa. St. 365 ; Holmes v. Wakefield, 
 12 Allen, .580; The State v. Ross, 26 N. J. L. 
 226; Hewett v. Swift, 3 Allen, 420; North- 
 Western R. Co. V. Hack, 66 111. 238. The case 
 of Kline v. Central Pacific R. Co., 37 Cal. 
 400 (s. c. 39 Cal. ,587), exhibits a state of 
 facts almost identical with that of Rounds v. 
 Delaware etc. R. Co. In this case it was 
 held that proof that the conductrtr ordered 
 the plaintiff to get off the train while in 
 motion, and accompanied such order with a 
 demonstration of force sufficient to impress 
 him with the belief that it would be em- 
 ployed, and thereby compelled him to jump 
 from the car, is equivalent to proof of the 
 employment of actual force. See also 
 Brown V. Hannibal etc. R. Co., 66 Mo. .588; 
 Lovett V. Salem etc. R. Co., 9 Allen, .557. 
 But in cases of this kind it is necessary to 
 establish the fact that the person committing 
 the assault is a servant of the company. 
 The mere fact that he declares himself to 
 
 be such at the time of the assault, does not 
 of itself establish it. Lindsay v. Central R. 
 etc. Co., 46 Ga. 447. 
 
 8 Vinton v. Middlesex R. Co., 11 Allen, 
 304 ; Pittsburgh etc. R. Co. v. Valleley, 32 Ohio 
 St. 345; s. c. 6 Cent. L. J. 277; Marquette v. 
 Chicago etc. R. Co., 33 Iowa, 562; Murphy v. 
 Union etc. R. Co., 118 Mass. 228; Chicago etc. 
 R. Co. V. Grifflii, 68 111. 499; Pittsburgh etc. 
 R. Co. V. Van Houten, 48 Ind. 90; Pittsburgh 
 etc. R. Co. V. Vandyne, 57 Ind. 576; The State 
 V. Ross, 26 N. J. L. 224; Higgins v. Watervliet 
 etc. R. Co.,46N. Y. 23. 
 
 ' Thurston v. Union Pacific R. Co., ante, 
 p. 10. But see Coppin v. Braithwaite, 8 Jur. 
 875, per Rolfe, B. 
 
 8 The People v. Caryl, 3 Park. Cr. Cas. 
 326; Baltimore etc. R. Co. v. Blocher, 27 Md. 
 277; liibbard v. New York etc. R. Co., 15 N. 
 Y. 455 ; The State v. Campbell, .32 N. J. L. 309 ; 
 Vedder v. Fellowes, 20 N. Y. 126; Northern 
 U. Co.t;. Page, 22 Barb. 130; Illinois etc. K. Co. 
 V. Whittemore, 43 111. 420. An unreasonable 
 demand for the delivery of a ticket, and ex- 
 pulsion in consequence of refusal, on the 
 other hand, affords a good cause of action 
 to the passenger. The State v. Thompson, 
 20 N. 11. 251 ; Pittsburgh etc. R. Co. v. Hen- 
 nigh, 30 Ind. .509; Maples v. New York etc. 
 R. Co., 38 Conn. .557: Curtis v. Grand Trunk 
 etc. 11. Co., 12 Upper Canada C. P. 89 ; Indian- 
 apolis etc. R. Co. V. Milligau, 50 Ind. 392.
 
 376 
 
 ASSAULTS UPON PASSENGERS 
 
 Notes. 
 
 ticket,! or a ticket the limitation of which has expired,^ or a ticket for which the 
 company have received no consideration or has been otherwise unlawfully ob- 
 tained,3 or without any ticket whatever,* or without paying any fare whatever,^ 
 or the fare which may properly be demanded; ^ or be guilty of a breach of other 
 reasonable regulations of the carrier;' or his conduct may amount to a breach 
 
 • Frederick v. Marquette etc. R. Co., 37 
 Mich. 342; s. c. 6 Reporter, 116 ; Pullman Pal- 
 ace-Car Co. V. Reed, 75 111. 125; Jerome v. 
 Smith, 48 Vt. 230; Chicago etc. R. Co. v. 
 Griffin, 68 111. 499; Goetz v. Hannibal etc. R. 
 Co., 50 Mo. 572; Nolan v. New York etc. R. Co., 
 9 Jones & Sp. 541 ; Barker v. New York etc. 
 R. Co., 24 N. Y. 599 ; s. c. sub nom. Page v. New 
 York etc. R. Co., 6 Duer, 523; Keeley v. Bos- 
 tou etc. R. Co., 67 Me. 163; s. c. 6 Cent. L. J. 
 382 ; 17 Alb. L. J. 366 ; O'Brien v. Boston etc. 
 R. Co., ante, p. 22; Terre Haute etc. R. 
 Co. V. Vanatta, 21 111. 188; Bennett v. New 
 York etc. R. Co., 69 N. Y. 594; s. c. 5 Hun, 
 599. 
 
 2 Hill V. Syi-acuse etc. R. Co., 63 N. Y. 101; 
 Farewell v. Grand Trunk etc. R. Co., 15 Up- 
 per Canada C. P. 427; Elmore v. Sands, 54 
 N. Y. 512; Barker v. Coflin, 31 Barb. 556; 
 Boice V. Hudson etc. R. Co., 61 Barb. 611; 
 Boston etc. R. Co. v. Proctor, 1 Allen, 267; 
 Shedd V. Troy etc. R. Co., 40 Vt. 88; The 
 State V. Campbell, 32 N. J. L. 309; Wentz v. 
 Erie R. Co., 5 Thomp. & C. 556; s. c. 3 Hun, 
 241; Nelson v. Long Island K. Co., 7 Hun, 
 140; Briggs v. Grand Trunk R. Co., 24 Upper 
 Canada Q. B. 510; Powell v. Pittsburgh etc. 
 R. Co., 25 Ohio St. 70; Sherman v. Chicago 
 etc. R. Co., 40 Iowa, 45; Lillis v. St. Louis etc. 
 R. Co., 64 Mo. 464; Terre Haute etc. R. Co. v. 
 Fitzgerald, 47 Ind. 79. 
 
 3 Memphis etc. R. Co. v. Chastine, 54 Miss. 
 503. In this case the ticket was purchased 
 with counterfeit money. In McCarthy v. 
 Chicago etc. R. Co., 41 Iowa, 432, the plaintiff 
 had not procured a ticket previous to enter- 
 ing the train, but handed the conductor a 
 ten-dollar bill to pay his fare of $6.20. In 
 making the change, the coQductor returned 
 to him .$5 too much. The plaintiff refused to 
 examine his change to ascertain if the con- 
 ductor's claim of mistake was correct. When 
 he had ridden as far as $1.20 entitled him to 
 ride, he was directed to leave the train, and 
 did so. It was held, that, having the means 
 at hand to determine whether or not the 
 mistake had been made, and failing to use 
 them, he was not entitled to damages for 
 expul.«ion from the train. 
 
 A railroad-pass fraudulently obtained con- 
 fers no rights upon the holder. Brown v. 
 Slissouri etc. R. Co., 64 Mo. 536. Such a pass 
 
 may be revoked at pleasure. Turner v, 
 Richmond etc. R. Co., 70 N. C. 1. 
 
 In Davis v. Great Western R. Co., 20 Upper 
 Canada Q. B. 27, it appeared that the ticket 
 offered by the plaintiff to the conductor 
 must have been sold about sixteen months 
 previous, and on another occasion the same 
 plaintiff had presented an old ticket, and on 
 its being rejected had paid his fare. These 
 circumstances were held to be calculated to 
 excite suspicion; therefore the mere pro- 
 duction of the ticket was not sufficient to- 
 establish the plaintiff's right to passage, but 
 it was a question lor the jury whether the 
 plaintiff had procured it fairly or was at- 
 tempting an imposition. 
 
 ■■ Weaver v. Rome etc. R. Co., 3 Thomp. & 
 0. 270; Shelton v. Lake Shore etc. R. Co., 29 
 Ohio St. 214 ; Pullman Palace-Car Co. v. Reed, 
 75 111. 125; Willetts v. Buffalo etc. R. Co., 14 
 Barb. 585; Wakefield v. South Boston R. Oo.^ 
 117 Mass. 544; Townsend v. New York etc. R. 
 Co., 56 N. Y. 295; Duke v. Great Western R. 
 Co., 14 Upper Canada Q. B. 377; Crawford v. 
 Cincinnati etc. R. Co., 26 Ohio St. 580. 
 
 6 Chicago etc. R. Co. v. Roberts, 40 111. 503; 
 Chicago etc. R. Co. v. Peacock, 48 111. 253; 
 Chicago etc. R. Co. v. Roger, 1 Bradw. 472 ; 
 Ohio etc. R. Co. v. Muhling, 30 111. 9; Haley 
 V. Chicago etc. R. Co., 21 Iowa, 15; Great 
 Western R. Co. v. Miller, 19 Mich. 305; The 
 People V. Jillson, 3 Park. Or. Cas. 234; Ful- 
 ton V. Grand Trunk R. Co., 17 Upper Canada 
 Q. B. 428. 
 
 6 Regina v. Faneuf, 5 Lower Canada Jur. 
 167 ; St. Louis etc. R. Co. v. Dalby, 19 111. 353 ; 
 Chicago etc. R. Co. v. Parks, ante, p. .319; St. 
 Louis etc. R. Co. v. South, 43 111. 176; Crocker 
 V. New London etc. R. Co., 24 Conn. 249; 
 rorter v. New Y'ork etc. R. Co., 34 Barb. 353 ; 
 Bordeaux v. Erie R. Co., 8 Hun, 579; The 
 State V. Chovin, 7 Iowa, 204 ; Du Laurans v. 
 St. Paul etc. R. Co., 15 Minn. 49; Indianapo- 
 lis etc. R. Co. V. Rinard,46 Ind. 293; Hilliard 
 V. Goold, 34 N. H. 230. It required a judicial 
 decision, in California, to establish that an 
 offer to pay the fare demanded, in legal-ten- 
 der notes of the United States, was a suffi- 
 cient tender. Tarbell v. Central Pacific R. 
 Co.,34Cal.616. 
 
 ^ Peck V. New York etc. R. Co., 70 N. Y. 587 ; 
 Bass V. Chicago etc. R. Co., 36 Wis. 450; s. c.
 
 BY THE CARKIER'S SERVANTS. 377 
 
 Circumstances justifying Expulsion of Passenger. 
 
 of the contract of carriage. ^ Circumstances like the foregoing furnish common 
 illustrations of what will justify the expulsion of the passenger by the carrier's 
 servants. 
 
 § 6. WTiere Persons may be ejected from a Railroad Train. — In the absence 
 
 of a statute regulating this matter, there is no requirement at common law to 
 put out a trespasser at one place rather than another. His convenience is not 
 to be consulted in this matter. But the law never permits one to wantonly 
 expose another to injury.^ In England, it is provided by statute that "pas- 
 sengers refusing to pay their fare may, by the conductor of the train and the 
 servants of the company, be, with their baggage, put out of the cars, using no 
 unnecessary force, at any usual stopping-place or near any dwelling-house, as 
 the conductor shall elect, first stopping the train." ^ Statutes similar to this are 
 in force in some of the States ; it is sometimes provided that a passenger shall 
 be expelled at no other place than a regular station upon the road.* Under a 
 statute which provided that passengers should be expelled from the train only 
 at the "usual stopping-place," it was held that a water- tank, although a usual 
 stopping-place, was not such as was contemplated by this statute, which must 
 be a regular station.^ Trespassers — persons going upon the train with the 
 intention of not paying their fare — cannot claim the benefits of a statute of this 
 kind. They are in no sense "passengers." They may be expelled at any place 
 where such expulsion would not result in wanton injury.* A regulation provided 
 that " passengers will not be carried on way-trains unless they are provided 
 with tickets. Way-freights will not stop at stations where tickets are not sold, to 
 receive nor let off passengers." This is reasonable; but a passenger who has 
 ridden on a way-freight train before the making of the rule, and afterwards, 
 without objection for the want of a ticket, cannot be landed off the train a mile 
 from a station, without proof of express notice or actual knowledge of the exist- 
 ence of the rule forbidding any one to enter the cars without a ticket.'' 
 
 39 Wis. 636 ; 42 Wis. 654 ; ante, p. 311 ; West Upper Canada Q. B. 504 ; Barlser v. Coflin, 31 
 
 Cliester R. Co. v. Miles, 55 Pa. St. 209; Goines Barb. 556; Gale v. Delaware etc. K. Co., 7 
 
 r. MeCandless, 4 Phila. 255; Cully v. Balti- Hun, 670. 
 
 more etc. R. Co., 1 Hughes, 536; Green v. The 2 Great Western R. Co. v. Miller, 19 Mich. 
 
 City of Bridgeton, 9Cent. L.J. 206; The Com- 305; Haley v. Chicago etc. R. Co., 21 Iowa, 15. 
 
 moil wealth «. Power, 7 Mete. 596; Jenclcs v. ^ Fulton v. Grand Trunk R. Co., 17 Up- 
 
 Coleman, 2 Sumn. 221, ante, p. 11; Harris w. per Canada Q. B. 428. 
 
 Stevens, 31 Vt. 79; Barney v. The D. R. Mar- * Rev. Stats. 111. 1877, p. 774, sect. 80; Chi- 
 tin, 11 Blatchf. 233; s. c. 5 Ch. Leg. N. 535; cago etc. R. Co. v. Flagg, 43 111. 364; Terre 
 sub nom. Barney v. The Oyster Bay etc. Co., Haute etc. R. Co. v. Vanatta, 21 111. 188. 
 67 N. Y. 301. 6 Chicago etc. R. Co. v. Flagg, 43 111. 364. 
 1 Stone V. Chicago etc. R. Co., 47 low, 82; « Lillis v. St. Louis etc. R. Co., 64 Mo. 4(;4; 
 Dietrich v. Pennsylvania R. Co., 71 Pa. St. Chicago etc. R. Co. v. Boger, 1 Bradw. 472. 
 432; Hamilton V. New Yorli etc. R. Co., 51 N. The contrary rule, announced in Chicago 
 Y. 100; Cheney v. Boston etc. R. Co., 11 etc. R. Go. ?;. Peacock, 48 111.2.53, and Chicago 
 Mete. 121; Cleveland etc. R. Co. v. Bartram, etc. R. Co. v. Roberts, 40 111. 503, would per- 
 il Ohio St. 457; The State t;. Overton, 24 N. mit a trespasser to ride the length and 
 J. L. 435; Johnson v. Concord R. Co., 46 N. breadth of the State, suffering only the in- 
 H. 213; Beebe v. Ayres, 28 Barb. 275; Drew convenience of being gently banded off the 
 V. Central Pacific R. Co., 51 Cal. 425; Briggs train at each station. 
 
 V. Grand Trunk etc. R. Co., 24 Upper Canada ' Lake Shore etc. R. Co. v. Greenwood, 79 
 
 Q. B. 510; Craig v. Great Western R. Co., 24 Pa. St. 373.
 
 CHAPTEE XI. 
 
 CONTRACTS LIMITING CARRIER'S LIABILITY FOR PER- 
 SONAL INJURIES. 
 
 Leading Case: Bailroad Company v. Lockwood. — Right of carrier to stipulate 
 
 against liability. 
 
 •fOTES: § 1. Validity of contract limiting liability of carrier to passenger 
 travelling upon a free pass. 
 2. Drovers' passes. 
 S. What negligence is covered by such a release. 
 
 RIGHT OF CARRIER TO STIPULATE AGAINST LIABILITY. 
 
 Railroad CoaiPANY v. Lockwood.* 
 Supreme Court of the United States, 1873, 
 
 Hon. Nathan Clifford, 
 
 •* Samuel F. Miller, 
 
 " Stephen J. Field, 
 
 ** Joseph P. Bradley, 
 
 " Noah H. Swayne, 
 
 " David Davis, 
 
 ** William Strong, 
 
 " Ward Hunt, 
 
 Justices. 
 
 !■ Stipulation must be just and reasonable. — A common carrier may not lawfully stip- 
 ulate against tlie responsibility which the law imposes upon him, unless such stipula 
 tion is just and reasonable. 
 
 2. Cannot stipulate against Negligence. — It is not just and reasonable for a common 
 
 carrier to stipulate for exemption from responsibUity for the negligence of himself or 
 his servants. 
 
 3. The Application of these Rules. — These rules are said to apply both to caniers of 
 
 goods and carriers of passengers, and with special force to the latter. 
 
 4. Effect of Drover's Pass.- Where a drover travels on a pass given to enable him 
 to take care of cattle which he is shipping on a raUroad train, he is a passenger for 
 hire. 
 
 The plaintiff in this case was a drover injured whilst travelling on a 
 stock-train of the New York Central Railroad Company proceeding 
 
 * Reported, 17 Wall. 357. 
 
 (378)
 
 CONTRACTS LIMITING CARRIER'S LIABILITY. 379 
 
 Supreme Court of the United States. 
 
 from Buffalo to Albany, and brought this suit to recover damages for 
 the injur}'. He had cattle in the train, and had been required at Buf- 
 falo to sign an agreement to attend to the loading, transporting, and 
 unloading of them, and to take all risk of injury to them and of per- 
 sonal injury to himself or to whomsoever went with the cattle ; and he 
 received what is called a drover's pass, — that is to saj', a pass certif}'- 
 ing that he had shipped sufficient stock to pass free to Albany, but 
 declaring tliat the acceptance of the pass was to be considered a waiver 
 of all claims for damages or injuries received on the train. The agree- 
 ment stated its consideration to be the carrying of the plaintiff's cattle 
 at less than tariff rates. It was shown on the trial that these rates were 
 about three times the ordinarj'^ rates charged, and that no drover had 
 cattle carried on those terms ; but all signed similar agreements to that 
 which was signed by the plaintiff, and received similar passes. Evi- 
 dence was given on the trial tending to show that the injury complained 
 of was sustained in consequence of negligence on the part of the defend- 
 a,nts or their servants, but they insisted that thej^ were exempted by the 
 terms of the contract from responsibility for all accidents, including those 
 occurring from negligence, — at least the ordinary negligence of their 
 servants, — and requested the judge so to charge. This he refused, 
 and charged that if the jury were satisfied that the injury occurred with- 
 out any negligence on the part of the plaintiff, and that the negligence 
 of the defendants caused the injury, they must find for the plaintiff, 
 which they did. Judgment being entered accordingly, the railroad 
 company took this writ of error. 
 
 It is unnecessary to notice some subordinate points made ; this court 
 
 was of opinion that all the questions of fact were fairly left to the jury, 
 
 and the whole controversy depended on the main question of law stated. 
 
 T. R. Strong, for plaintiff in error; Messrs. Truman Smith and 
 
 Cephas Brainerd, contra. 
 
 Mr. Justice Bradley delivered the opinion of the court. — It may 
 be assumed, in limine, that the case was one of carriage for hire ; for 
 though the pass certifies that the plaintiff was entitled to pass free, yet 
 his passage v»^as one of the mutual terms of the arrangement for carry- 
 ing his cattle. The question is therefore distinctly raised, whether a 
 railroad company carrying passengers for hire can lawfully stipulate not 
 to be answerable for their own or their servants' negligence in reference 
 to such carriage. 
 
 As the duties and responsibilities of public carriers were prescribed 
 by public policy, it has been seriously doubted whether the courts did 
 wisely in allowing that policy to be departed from without legislative
 
 380 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 interference, by which needed modifications could have been introduced 
 into the law. But the great hardship on the carrier in certain special 
 cases, where goods of great value or subject to extra risk were deliv- 
 ered to him without notice of their character, and where losses happened 
 by sheer accident, without any possibility of fraud or collusion on hi- 
 part, such as by collisions at sea, accidental fire, etc., led to a relaxa- 
 tion of the rule to the extent of authorizing certain exemptions from 
 liability in such cases to be provided for, either by public notice 
 brought home to the owners of the goods, or by inserting exemptions 
 from liability in the bill of lading or other contract of carriage. A 
 modification of the strict rule of responsibility, exempting the carrier 
 from liability for accidental losses, where it can be safely done, enables 
 the carrying interest to reduce its rates of compensation ; thus propor- 
 tionately relieving the transportation of produce and merchandise from 
 some of the burdens with which it is loaded. 
 
 The question is, whether such modification of responsibility by notice 
 or special contract may not be carried beyond legitimate bounds, and 
 Introduce evils against which it was the direct policy of the law to 
 guard ; whether, for example, a modification which gives license and 
 immunity' to negligence and carelessness on the part of a public car- 
 rier or his servants, is not so evidently repugnant to that policy as 
 to be altogether null and void, — or, at least, null and void under certain 
 circumstances. 
 
 In the case of sea-going vessels, Congress has, by the act of 1851. 
 relieved ship-owners from all responsibility for loss by fire, unless 
 caused by their own design or neglect ; and from responsibility for 
 loss of money and other valuables named, unless notified of their char- 
 acter and value ; and has limited their liability to the value of the ship 
 and freight, where losses happen by the embezzlement or other act of 
 the master, crew, or passengers ; or by collision, or any cause occurring 
 without their privity or knowledge ; but the master and crew themselves 
 are held responsible to the parties injured by their negligence or mis- 
 conduct. Similar enactments have been made by State legislatures. 
 This seems to be the onl}- important modification of previously existing 
 law on the subject which, in this country, has been effected by legisla- 
 tive interference. And by this it is seen, that, though intendetl for the 
 relief of the ship-owner, it still leaves him liable to the extent of his 
 ship and frelglit, for the negligence and misconduct of his employees, 
 and liable without limit for his own negligence. 
 
 It is true that the first section of the above act, relating to loss by 
 fire, has a proviso that nothing in the act contained shall prevent the
 
 IN CASE OF PERSONAL INJURIES. 381 
 
 Supreme Court of the United Stages. 
 
 parties from making such contract as tliey please, extending or limiting 
 the liability of ship-owners. This proviso, however, neither enacts nor 
 tilfirms anything. It simply' expresses the intent of Congress to leave 
 the right of contracting as it stood before the act. 
 
 The courts of New York, where this case arose, for a long time 
 resisted the attempts of common carriers to limit their common-law 
 liability, except for the purpose of procuring a disclosure of the char- 
 -ficter and value of articles liable to extra hazard and risk. This they 
 were allowed to enforce by means of a notice of non-liability if the dis- 
 -closure was not made. But such announcements as "All baggage at 
 the risk of the owner," and such exceptions in bills of lading as "This 
 company will not be responsible for injuries by fire, nor for goods lost, 
 «tolen, or damaged," were held to be unavailing and void, as being 
 iigainst the policy of the law.^ 
 
 But since the decision in the case of New Jersey Steam Naviga- 
 tion Comjyany v. Merchants' Bank, by this court, in January term, 1848, ^ 
 it has been uniformly held, as well in the courts of New York as in the 
 Federal courts, that a common carrier may, by special contract, limit 
 his common-law liability, although considerable diversity of opinion has 
 •existed as to the extent to which such limitation is admissible. 
 
 The case of New Jersey Navigation Company v. Merchants' Bank, 
 above adverted to, grew out of the burning of the steamer Lex- 
 ington. Certain money belonging to the bank had been intrusted to 
 Harnden's Express, to be carried to Boston, and was on board the 
 steamer when she was destroyed. By agreement between the steam- 
 boat company and Harnden, the crate of the latter and its contents 
 were to be at his sole risk. The court held this agreement valid so far 
 as to exonerate the steamboat company from the responsibility imposed 
 by law, but not to excuse them for misconduct or negligence, which 
 tiie court said it would not presume that the parties intended to include, 
 although the terms of the contract were broad enough for that purpose ; 
 and that, inasmuch as the company had undertaken to carry the goods 
 from one place to another, they were deemed to have incurred the same 
 degree of responsibility as that which attaches to a private person 
 engaged casually in the like occupation, and were, therefore, bound to 
 use ordinary care in the custody of the goods and in their delivery, 
 and to provide proper vehicles and means of conveyance for their 
 transportation ; and as the court was of opinion that the steamboat 
 company had been guilty of negligence in these particulars, as well as 
 
 ' Cole V. Goodwin, 19 Wend. 257; Gould v. Hill, 2 Hill, 623. 6 How. Ui.
 
 '6S2 CONTKACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 in the management of the steamer during the fire, they held them 
 responsible for the loss. 
 
 As this has been regarded as a leading case, we may pause for a 
 moment to observe that the case before us seems almost precisely within 
 the category of that decision. In that case, as in this, the contract was 
 general, exempting the carrier from every risk and imposing it all upon 
 the party ; but the court would not presume that the parties intended 
 to include the negligence of the carrier or his agents in that exception. 
 
 It is strenuously insisted, however, that as negligence is the only 
 ground of liability in the carriage of passengers, and as the contract is 
 absolute in its terms, it must be construed to embrace negligence as 
 well as accident, the former in reference to passengers, and both in 
 reference to the cattle carried in the train. As this argument seems 
 plausible, and the exclusion of a liabiUty embraced in the terms of 
 exemption on the ground that it could not have been in the mind of the 
 parties is somewhat arbitrary, we will proceed to examine the question 
 before propounded, namely, whether common carriers may excuse them- 
 selves from liability for negligence. In doing so we shall first briefly 
 review the course of decisions in New York, on which great stress has 
 been laid, and which are claimed to be decisive of the question. 
 Whilst we cannot concede this, it is nevertheless due to the courts of 
 that State to examine carefully the grounds of their decision, and to 
 give them the weight wliich they justly deserve. We think it will be 
 found, however, that the weight of opinion, even in New York, is not 
 altogether on the side that favors the right of the carrier to stipulate 
 for exemption from the consequences of his own or his servants' negli- 
 gence. 
 
 The first recorded case that arose in New York, after the before- 
 mentioned decision in this court, involving the right of a carrier to limit 
 his liability, was that of Dorr v. New Jersey Steam Navigation Com- 
 oany,^ decided in 1850. This case also arose out of the burning of 
 the Lexington, under a bill of lading which excepted from the com- 
 pany's risk "danger of fire, water, breakage, leakage, and other acci- 
 dents." Judge Campbell, delivering the opinion of the court, says: 
 "A common carrier has in truth two distinct liabilities: the one for 
 losses by accident or mistake, where he is liable as an insurer; the 
 other for losses by default or negligence, where he is answerable as an 
 ordinary bailee. It would certainly seem reasonable that he might, by 
 express special contract, restrict his liability as insurer ; that he might 
 
 1 4 Sandf. S. C. 136.
 
 IN CASE OF PERSONAL INJURIES. 383 
 
 Supreme Court of the United States. 
 
 protect himself against misfortune, even though public policy should 
 require that he should not be permitted to stipulate for impunity where 
 the loss occurs from his own default or neglect of duty. Such we 
 understand to be the doctrine laid down in the case of New Jersey 
 Steam Navigation Company v. Merchants' Bank, in 6 Howard, and 
 such we consider to be the law in the present case." And in Stoddard 
 V. Long Island Railway Company,^ another express case, in which it 
 was stipulated that the express company should be alone responsible for 
 all losses. Judge Duer, for the court, says: "Conforming our decision 
 to that of the Supreme Court of the United States, we must therefore 
 hold: 1. That the liability of the defendants as common carriers was 
 restricted by the terms of the special agreement between them and 
 Adams & Co., and that this restriction was valid in law. 2. That by 
 the just interpretation of this agreement, the defendants were not to be 
 exonerated from all losses, but remained liable for such as might result 
 from the wrongful acts, or the want of due care and diligence, of them- 
 selves or their agents and servants. 3. That the plaintiffs, claiming 
 through Adams & Co., are bound by the special agreement." The 
 same view was taken in subsequent cases, ^ all of which show that no 
 idea was then entertained of sanctioning exemptions of liability for 
 negligence. 
 
 It was not till 1858, in the case of Wells v. Neio YorTc Central Rail- 
 road Company,'^ that the Supreme Court was brought to assent to the 
 proposition that a common carrier may stipulate against responsiljility 
 for the negligence of his servants. That was the case of a gratuitous 
 passenger travelling on a free ticket which exempted the company from 
 liability. In 1862, the Court of Appeals, by a majority, afflrmed this 
 judgment;^ and in answer to the suggestion that public policy required 
 that railroad companies should not be exonerated from the duty of 
 carefulness in performing their important and hazardous duties, the 
 court held that the case of free passengers could not seriously affect 
 the incentives to carefulness, because there were very few such, com- 
 pared with the great mass of the travelling public. Perkins v. New York 
 Central Railroad Company^ was also the case of a free passenger, 
 with a similar ticket; and the court held that the indorsement exempted 
 the company from all kinds of negligence of its agents, gross as well as 
 ordinary ; that there is, in truth, no practical distinction in the degrees 
 of negligence. 
 
 1 5 Sandf. S. C. 180. » 26 Barb. 641. 
 
 s Parsons v. Monteath, 13 Barb. 353 ; Moore » 24 N. Y. 181. 
 
 V. Evans, 14 Barb. 524. ' 24 N. Y. 196.
 
 ■384 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 The next cases of importance that arose in the New York courts were 
 those of drovers' passes, in which the passenger took all responsibility 
 ■of injury to himself and stock. The first was that of Smith v. New 
 York Central Railroad Company,'^ decided in March, 1859. The con- 
 tract was precisely the same as that in the present case. The damage 
 arose from a flattened wheel in the car, which caused it to jump the 
 track. The Supreme Court, by Hogeboom, J., held that the railroad 
 company was liable for any injury happening to the passenger, not only 
 by the gross negligence of the compan^-'s servants, but by ordinary 
 negligence on their part. "For my part," says the judge, " I think 
 not only gross negligence is not protected b}' the terms of the contract, 
 but what is termed ordinary negligence, or the withholding of ordinary 
 <;are, is not so protected. I think, notwithstanding the contract, the 
 carrier is responsible for what, independent of any peculiar responsi- 
 bility attached to his calling or employment, would be regarded as fault 
 or misconduct on his part." The judge added that he thought the car- 
 rier might, by positive stipulation, relieve himself to a limited degree 
 from the consequences of his own negligence or that of his servants. 
 But to accomplish that object the contract must be clear and specific 
 in its terms, and plainly covering such a case. Of course this remark 
 was extra-judicial. The judgment itself was affirmed by the Court of 
 Appeals in 1862, by a vote of five judges to three. ^ Judge Wright 
 strenuously contended that it is against public policy for a carrier of 
 passengers, where human life is at stake, to stipulate for immunity for 
 any want of care. " Contracts in restraint of trade are void," he 
 says, "because they interfere with the welfare and convenience of the 
 State ; yet the State has a deep interest in protecting the lives of its citi- 
 zens." He argued that it was a question affecting the public, and not 
 alone the party who is carried. Judge Sutherland agreed in substance 
 with Judge Wright. Two other judges held that if the party injured 
 had been a gratuitous passenger the company would have been dis- 
 charged, but in their view he was not a gratuitous passenger. One 
 judge was for affirmance on the ground that the negligence was that of 
 the company itself. The remaining three judges held the contract valid 
 to the utmost extent of exonerating the company, uoLwithsluiidiiig the 
 grossest neglect on the part of its servants. 
 
 In that case, as in the one before us, the contvar^t was general in its 
 terms, and did not specify negligence of agents as a risk assumed by 
 the passenger, though by its generality it included all risks. 
 
 » 29 Barb. 132. 2 24 N. Y. 223.
 
 IN CASE OF PERSONAL INJURIES. 385 
 
 Supreme Court of the Uuited States. 
 
 The next case, Bissell v. N'ew York Central Railroad Company,^ 
 first decided in September, 1859, differed from the preceding in that the 
 ticket express]}'' stipulated that the raih-oad company should not be liable 
 under any circumstances, "■ whether of negligence by their agents or 
 •otherwise," for injury to the person or stock of the passenger. The 
 latter was killed by the express-train running into the stock-train, and 
 the jury found that his death was caused by the gross negligence of the 
 ngents and servants of the defendants. The Supreme Court held that 
 i^ross negligence (whether of servants or principals) cannot 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. In December, 
 1862, this judgment was reversed by the Court of Appeals, — four judges 
 ngainst three, ^ — Judge Smith, who concurred in the judgment below, hav- 
 ing in the meantime changed his views as to the materiality of the fact 
 that the negligence stipulated against was that of the servants of the com- ■ 
 pany, and not of the company itself. The majority now held that the 
 ticket was a free ticket, as it purported to be, and therefore that the 
 case was governed by Wells v. New York Central Railroad Com- 
 pany ; 3 but whether so or not, the contract was founded on a valid con- 
 sideration, and the passenger was bound to it, even to the assumption of 
 the risk arising from the gross negligence of the company's servants. 
 Elaborate opinions were read by Justice Selden in favor, and by Jus- 
 tice Denio against the conclusions reached by the court. The former 
 considered that no rule of public policy forbids such contracts, because 
 the public is amply protected by the right of every one to decline any 
 special contract, on paying the regular fare prescribed by law, — that 
 is, the highest amount which the law allows the company to charge. In 
 other words, unless a man chooses to pay the highest amount which the 
 company by its charter is authorized to charge, he must submit to their 
 terms, howev^er onerous. Justice Denio, with much force of argument, 
 combated this view, and insisted upon the impolicy and immorality of 
 contracts stipulating immunity for negligence, either of servants or 
 principals, where the lives and safety of passengers are concerned. 
 The late case of Poucher v. New York Central Railroad Company'^ is 
 in all essential respects a similar case to this, and a similar result was 
 reached. 
 
 These are the authorities which we are asked to follow. Cases may 
 also be found in some of the other State courts, which, by dicta or deci- 
 sion, either favor or follow more or less closely the decisions in New 
 
 1 29 Baib. 602. 3 04 jf. y. 181 ; 8. c. 26 Barb. 641. 
 
 s 25 N. Y. 442. < 49 N. Y. 203. 
 
 25
 
 386 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 York. A reference to the principal of them is all that is necessary 
 here J 
 
 A review of the cases decided by the courts of New York shows that 
 though they have carried the power of the common carrier to make 
 special contracts to the extent of enabling him to exonerate himself 
 from the effects of even gross negligence, yet that this effect has never 
 been given to a contract general in its terms ; so that if we only felt 
 bound by those precedents, we could perhaps find no authority for 
 reversing the judgment in this case. But on a question of general 
 commercial law, the Federal courts administering justice in New York 
 have equal and coordinate jurisdiction with the courts of that State. 
 And in deciding a case which involves a question of such importance 
 to the whole country, a question on which the courts of New York 
 have expressed such diverse views, and have so recently, and with such 
 slight preponderancy of judicial suffrage, come to the conclusion that 
 they have, we should not feel satisfied without being able to place our 
 decision upon grounds satisfactory to ourselves, and resting upon what 
 we consider sound principles of law. 
 
 In passing, however, it is apposite to call attention to the testimony 
 of an authoritative witness as to the operation and effect of the recent 
 decisions referred to. "The fruits of this rule," sa^^s Judge Davis, 
 '' are already being gathered in increasing accidents, through the 
 decreasing care and vigflance on the part of these corporations ; and 
 they will continue to be reaped until a just sense of public policy shall 
 lead to legislative restriction upon the power to make this kind of con- 
 tracts." 2 
 
 "We now proceed to notice some cases decided in other States, in which 
 a different view of the subject is taken. 
 
 In Penns^-lvania, it is settled by a long course of decisions that a com- 
 mon carrier cannot, by notice or special contract, limit his liability so 
 as to exonerate him from responsibility for his own negligence or mis- 
 feasance, or that of his servants and agents. ^ ''The doctrine is firmly 
 
 1 Ashmore v. Penn. etc. Transp. Co., 28 N. 32 Md. 333; Brehme v. Adams Express Co. 
 
 J. L. ISO ; Kinney v. Central R. Co., 32 N. J. 25 Md. 328 ; Levering v. Union Transp. Co., 42 
 
 L. 407; Hale v. New Jersey Steam Nav. Co., Mo. 88. 
 
 15 Conn. 539; Peck v. Weeks, 34 Conn. 145; 2 Stinson v. New York etc. K. Co., 32 N. Y. 
 
 Lawrence v. Xew York etc. R. Co., 36 Conn. 337. 
 
 63; Kimball v. Rutland etc. R. Co., 26 Vt. 247; 3 Laing v. Colder, 8 Pa. St. 479; Camden 
 
 Mann v. Birchard, 40 Vt. 333 ; Adams Ex- etc. R. Co. v. Baldauf , 16 Pa. St. 67 ; Goldey 
 
 press Co. 1). Haynes, 42 111. 89; Adams Ex- i;. Pennsylvania R. Co., 30 Pa. St. 242; Powel 
 
 press Co. v. Perkins, 42 111. 458; Illinois etc. v. Pennsylvania R. Co., 32 Pa. St. 414; Penn 
 
 R. Co. V. Adams, 42 111. 474; Hawkins v. sylvania R. Co. r. Henderson, 51 Pa. St. 315: 
 
 Great Western R. Co., 17 Mich. 57; s. c. 18 Farnham v. Camden etc. R. Co., 55 Pa. St 
 
 Mich. 427; Baltimore etc. R. Co. v. Brady, 53; Express Co. v. bands, 55 Pa. St. 140; Em
 
 IN CASE OF PERSONAL INJURIES. 387 
 
 Supreme Court of the United States. 
 
 settled," says Chief Justice Thompson in Farnham v. Camden and 
 Amhoy Railroad Company, " that a common carrier cannot limit his 
 liability so as to cover his own or his servants' negligence." ^ This lia- 
 bility is affirmed both when the exemption stipulated for is general, 
 covering all risks, and where it specifically includes damages arising from 
 the negligence of the carrier or his servants. In Pennsylvania Railroad 
 Company v. Henderson,"^ a drover's pass stipulated for immunity of the 
 company in case of injury from negligence of its agents or otherwise. 
 The court, Judge Read delivering the opinion, after a careful review of 
 the Pennsylvania decisions, says: "This indorsement relieves the com- 
 pany from all liability, for any cause whatever, for any loss or injury to 
 the person or property, however it may have been occasioned ; and our 
 doctrine, settled by the above decisions, made upon grave deliberation, 
 declares that such a release is no excuse for negligence." 
 
 The Ohio cases are very decided on this subject, and reject all 
 attempts of the carrier to excuse his own negligence or that of his ser- 
 vants. ^ In Davidson v. Graham,^ the court, after conceding the right 
 of the carrier to make special contracts to a certain extent, says: "■ He 
 cannot, however, protect himself from losses occasioned by his own 
 fault. He exercised a public employment, and diligence and good 
 faith in the discharge of his duties are essential to the public interests. 
 * * * And public policy forbids that he should be relieved by 
 special agreement from that degree of dihgence and fidelity which the 
 law has exacted in the discharge of his duties." In Wehli v. Pittsburgh, 
 Fort Wayne, and Chicago Railroad Company,^ the court says: "In this 
 State, at least, railroad companies are rapidly becoming almost the ex- 
 clusive carriers botli of passengers and goods. In consequence of the 
 public character and agency which they have voluntarily assumed, the 
 most important powers and privileges have been granted to them by the 
 State." From these facts the court reasons that it is specially important 
 that railroad companies should be held to the exercise of due diligence 
 at least. And as to the distinction taken by some, that negligence of 
 servants may be stipulated for, the court pertinently says: " This doc- 
 trine, when applied to a corporation, which can only act through its 
 agents and servnnts, would secure complete immunity for the neglect 
 of every duty." ^ And in relation to a drover's pass, substantially the 
 
 pire Transp. Co. v. Wamsutta Oil Co., 63 Pa. 4 Ohio St. 723; Welsh v. Pittsburgh etc. R. 
 
 St. 14. Co., 10 Ohio St. 75; Cleveland etc. R. Co. v. 
 
 > S.') Pa. St. 62. 2 Supra. Curran, 19 Ohio St. 1 ; Cincinnati etc. R. Co. 
 
 8 Jones V. Voorhees, 10 Ohio, 145; David- v. Pontius, 19 Ohio St. 221; Knowlton v. Erie 
 
 eon V. Graham, 2 Ohio St. 131; Uraliain v. R. Co., 19 Ohio St. 260. 
 
 Davis, 4 Ohio St. CC2; AVilson v. Hamilton, * Supra. '" 10 Oliio St. 75. » Id. 75, 76.
 
 388 CONTRACTS LIMITING CARRIER'S LIABILITY. • 
 
 Railroad Company v. Lockvvood. 
 
 same as that in the present case, the same court, in Cleveland, etc. Rail- 
 road Company v. Curran,^ held: 1. That the holder was not a gratui- 
 tous passenger ; 2. That the contract constituted no defence against 
 the negligence of the company's servants, being against the policy of 
 the law, and void. The court refers to the cases of Bissell v. New 
 York Central Railroad Company^ and of Pennsylvania Railroad Com- 
 2')any v. Henderson,'^ and expresses its concurrence in the Pennsylvania 
 decision.^ This was in December term, 1869. 
 
 The Pennsj'lvania and Ohio decisions differ mainly in this, that the 
 former give to a special contract (when the same is admissible) the 
 effect of converting the common carrier into a special bailee for hire, 
 whose duties are governed by his contract, and against whom, if negli- 
 gence is charged, it must be proved by the party injured; whilst the 
 latter hold that the character of the carrier is not changed by the con- 
 tract, but that he is a common carrier still, with enlarged exemptions 
 from responsibility, within which the burden of proof is on him to show 
 that an injury occurs. The effect of this difference is to shift the bur- 
 den of proof from one party to the other. It is unnecessary to adjudi- 
 cate that point in this case, as the judge on the trial charged the jur}-, 
 as requested bj' the defendants, that the burden of proof was on the 
 plaintiff. 
 
 In Maine, whilst it is held that a common carrier may, by special 
 contract, be exempted from responsibility for loss occasioned by natural 
 causes, such as the weather, fire, heat, frost, etc.,^ yet in a case where 
 it was stipulated that a railroad company should be exonerated from all 
 damages that might happen to any horses or cattle that might be sent 
 over the road, and that the owners should take the risk of all such dam- 
 ages, the court held that the company were not thereby excused from 
 the consequences of their negligence, and that the distinction between 
 negligence and gross negligence in such a case is not tenable. " The 
 very great danger," says the court, "to be anticipated by permitting 
 them [common carriers] to enter into contracts to be exempt from 
 losses occasioned by misconduct or negligence, can scarcely be over-es- 
 timated. It would remove the piincipal safeguard for the preservation 
 of life and property in such conveyances."^ 
 
 To the same purport it was held in Massachusetts, in the late case of 
 School District v. Boston, etc. Railroad Company,"^ where the defendant 
 set up a special contract that certain iron castings were taken at the 
 
 1 19 Ohio St. 1. 6 Fillebrown v. Gr. Trunk Ry., 55 Me. 462. 
 
 « 25 N. Y. 442. » 51 Pa. St. 315, e Sager v. Portsmoutli, 31 Me. 228 238. 
 
 ♦ 19 Ohio St. 13. 14. 7 102 Mass. 552.
 
 IN CASE OF PERSONAL INJURIES. 389 
 
 Supreme Court of the United States. 
 
 owner's risk of fracture or injury during the course of transportation, 
 loading, and unloading, and the court say: "The special conti-act here 
 set up is not alleged, and could not by law be permitted to exempt the 
 defendants from liability for injuries by their own negligence." ^ 
 
 To the same purport, likewise, are many other decisions of the State 
 courts, some of which are argued with great force and are worthy of 
 attentive perusal, but, for want of room, can only be referred to here.^ 
 
 These views as to the impolicy of allowing stipulations against lia- 
 bility for negligence and misconduct are in accordance with the early 
 English authorities. St. Germain, in the Doctor and SUulent^'^ point- 
 edly says of the common carrier: "If he would percase refuse to 
 carry it [articles delivered for carriage] unless promise were made 
 unto him that he shall not be charged for no misdemeanor that should 
 be in him, the promise were void, for it were against reason and against 
 good manners, and so it is in all other cases like." 
 
 A century later this passage is quoted by Attorney-General Noy in 
 his book of Maxims as unquestioned law.^ And so the law undoubtedly 
 stood in England until comparatively a very recent period. Serjeant 
 Stephen, in his Commentaries,^ after stating that a common carrier's 
 liability might at common law be varied by contract, adds that the law 
 still held him responsible for negli^' iice and misconduct. 
 
 The question arose in England principally upon public notices given 
 by common carriers that they would not be responsible for valuable 
 goods unless entei*ed and paid for according to value. The courts 
 held that this was a reasonable condition, and if bi'ought home to the 
 owner, amounted to a special contract, valid in law. But it was also 
 held that it could not exonerate the carrier if a loss occurred by his 
 actual misfeasance or gross negligence. Or, as Starkie says, "Proof 
 of a direct misfeasance or gross negligence is, in effect, an answer to 
 proof of notice."^ But the term "gross negligence" was so vague 
 and uncertain that it came to represent every instance of actual negli- 
 gence of the carrier or his servant, or ordinary negligence in the accus- 
 tomed mode of speaking.'^ Justice Story, in his work on Bailments, 
 originally published in 1832, says that it is now held that in cases 
 
 1 Id. 556. & IVI. 599; Southern Express Co, v. Moon, 39 
 
 2 Indianapolis etc. R. Co. v. Allen, 31 Ind. Miss. 822; New Orleans Mutual Ins. Co. v. 
 394; Michigan R. Co. v. Heaton, 31 Ind. 397, New Orleans etc. R. Co., 20 La. An. 302. 
 note; Flinn v. Philadelphia R. Co., 1 Houst. a Dial. 2, c. 38. 
 
 472; Orndorff v. Adams Express Co., 3 Bush, < Noy's Max. 92. 
 
 194 ; Swindler v. Hilliard, 2 Rich. L. 286 ; Berry 6 Vol. 2, p. 135. 
 
 V. Cooper, 28 Ga. 543 ; Steele v. Townsend, « 2 Stark, on Ev. (6th Am. ed.) 205. 
 
 37 Ala. 247; Southern Express Co. v. Crook, ' Hinton v. Dibbin, 2 Q. B. 646; Wyld v. 
 
 44 Ala. 468; Whitesides v. Thurlkill, 12 Smed. Pickford, 8 Mec. & W. 460.
 
 390 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 of such notices the carrier is liable for losses and injury occasioned 
 not only by gross negligence, but by ordinary negligence ; or, in other 
 words, the carrier is bound to ordinary diligence.^ 
 
 In estimating the effect of these decisions, it must be remembered 
 that in the cases covered by the notices referred to, the exemption 
 claimed was entire, covering all cases of loss, negligence as well as 
 others. They are therefore directly in point. 
 
 In 1863, in the great case of Peek v. North Staffordshire Railway 
 Company,'^ Mr. Justice Blackburn, in the course of a very clear and 
 able review of the law on the subject, after quoting this passage from 
 Justice Story's work, proceeds to say: "In my opinion, the weight of 
 authority was, in 1832, in favor of this view of the Jaw ; but the cases 
 decided in our courts between 1832 and 1854 established that this was 
 not the law, and that a carrier might, by a special notice, make a con- 
 tract limiting his responsibility, even in the cases here mentioned, of 
 gross negligence, misconduct, or fraud on the part of his servants ; 
 and, as it seems to me, the reason why the Legislature intervened in 
 the Railway and Canal Traffic Act, in 1854, was because it thought that 
 the companies took advantage of those decisions (in Story's language) 
 'to evade altogether the salutary policy of the common law.' " 
 
 This quotation is sufficient to show the state of the law in England at 
 the time of the publication of Judge Story's work ; and it proves that 
 at that time common carriers could not stipulate for immunitj^ for their 
 own or their servants' negligence. But in the case of Carr v. Lan- 
 cashire Railway Company,^ and other cases decided whilst the change 
 of opinion alluded to by Justice Blackburn was going on (several of 
 which related to the carriage of horses and cattle), it was held that 
 carriers could stipulate for exemption from liability for even their own 
 gross negligence. Hence the act of 1854 was passed, called the Rail- 
 way and Canal Traffic Act, declaring that railway and canal companies 
 should be liable for negligence of themselves or their servants, not- 
 withstanding any notice or condition, unless the court or judge trying 
 the cause should adjudge the conditions just and reasonable.^ Upon 
 this statute ensued a long list of cases deciding what conditions were or 
 were not just and reasonable. The truth is, that this statute did little 
 more than bring back the law to the original position in which it stood 
 before the English courts took their departure from it. But as we 
 shall have occasion to advert to this subject again, we pass it for the 
 present. 
 
 1 story on Bail., § 571. « 7 Exch. 707. 
 
 2 10 H. L. Gas. 473. 4 i pish. Dig. 1466.
 
 IN CASE OF PERSONAL INJUEIES. 391 
 
 Supreme Court of the United States. 
 
 It remains to see what has been held by this court on the subject now 
 under consideration. 
 
 We have already referred to the leading case of New Jersey Steam 
 Navigation Company v. Merchants' BankA On the precise point now 
 under consideration Justice Nelson said : " If it is competent at all for 
 the carrier to stipulate for the gross negligence of himself and his ser- 
 vants or agents in the transportation of goods, it should be required 
 to be done, at least, in terms that would leave no doubt as to the 
 meaning of the parties." 
 
 As to the carriers of passengers, Mr. Justice Grier, in the case of 
 Philadelphia and Reading Railroad Company v. Derby,- delivei'ing the 
 opinion of the court, said: "When carriers undertake to convey per- 
 sons by the powerful but dangerous agency of steam, public policy and 
 safetj^ require that they be held to the greatest possible care and dili- 
 gence. And whether the consideration for such transportation be pecu- 
 niary or otherwise, the personal safety of the passengers should not be 
 left to the sport of chance or the negligence of careless agents. Any 
 neghgence in such cases may well deserve the epithet of 'gross.'" 
 That was the case of a free passenger, a stockholder of the company, 
 taken over the road by the president to examine its condition ; and it 
 was contended in argument, that as to him, nothing but "gross negli- 
 gence" would make the company Uable. In the subsequent case of 
 Steamboat New World v. King,^ which was also the case of a free pas- 
 senger carried on a steamboat, and injured by the explosion of the 
 boiler, Curtis, J., delivering the judgment, quoted the above propo- 
 sition of Justice Grier, and said: "We desire to be understood to 
 reaffirm that doctrine, as resting not only on public policy, but on 
 sound principles of law,"^ 
 
 In York Company v. Central Railroad Company,^ the court, after 
 conceding that the responsibility imposed on the carrier of goods by the 
 common law may be restricted and qualified by express stipulation, 
 adds: "When such stipulation is made, and it does not cover losses 
 from negligence or misconduct, we can perceive no just reason for 
 refusing its recognition and enforcement." In the case of Walker v. 
 Transportation Company,^ decided at the same term, it is true, the owner 
 of a vessel destroyed by fire on the lakes was held not to be responsible 
 for the negligence of the officers and agents having charge of the 
 vessel; but that was under the act of 1851, which the court held to 
 
 1 6 How. 383. ♦ Id. 474. 
 
 2 14 How. 486: «. c. ante, p. 31. » 3 Wall. 118. 
 8 16 How. 469; 8. c. ante, p. 175. • Id. 150.
 
 )92 CONTRACTS LIMITING CAKRIER's LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 apply to our great lakes as well as to the sea. And in Express Com- 
 pany V. Kountze Brotliers^^ where the carriers were sued for the losi<^ 
 oi gold-dust delivered to them on a bill of lading excluding liability for 
 any loss or damage by fire, act of God, enemies of the government, or 
 dangers incidental to a time of war, they were held liable for a robbery 
 by a predatory band of armed men (one of the excepted risks), because 
 they negligently and needlessly" took a route which was exposed to such 
 incursions. The judge at the trial charged the jury, that although the 
 contract was legally sufficient to restrict the liability of the defendants 
 as common carriers, yet if they were guilty of actual negligence, they 
 were responsible ; and that they were chargeable with negligence unless 
 they exercised the care and prudence of a prudent man in his own 
 affairs. This was held by this court to be a correct statement of the 
 law.2 
 
 Some of the above citations are only expressions of opinion, it is 
 true, but they are the expressions of judges whose opinions are entitled 
 to much weight; and the last-cited case is a judgment upon the precise 
 point. Taken in connection with the concurring decisions of State 
 courts before cited, they seem to us decisive of the question, and leave 
 but little to be added to the considerations which they suggest. 
 
 It is argued that a common carrier, by entering into a special contract 
 with a party for canying his goods or person on modified terms, drops 
 his character and becomes an ordinary bailee for hire, and therefore 
 ma3^ make any contract he pleases. That is, he may make any contract 
 whatever, because he is an ordinary bailee ; and he is an ordinary bailee 
 because he has made the contract. 
 
 We are unable to see the soundness of this reasoning. It seems to 
 us more accurate to say that common carriers are such b}'^ virtue of 
 their occupation, not by virtue of the responsibilities under which they 
 rest. Those responsibilities may vary in different countries and at 
 different times without changing the character of the employment. 
 The common law subjects the common carrier to insurance of the 
 goods carried, except as against the act of God or public enemies. 
 The civil law excepts, also, losses by means of any superior force, and 
 any inevitable accident. Yet the employment is the same in both cases. 
 And if by special agreement the carrier is exempted from still other 
 responsibilities, it does not follow that his emploj^ment is changed, bui 
 only that his responsibilities are changed. The theory occasional!}- 
 announced, that a special contract as to the terms and responsibilities 
 
 1 8 Wall. 342. 2 jd. 353.
 
 IN CASE OF PERSONAL INJURIES. 39S 
 
 Supreme Court of the United States. 
 
 of carriage changes the nature of the employment, is calculated to 
 mislead. The responsibilities of a common carrier may be reduced to 
 those of an ordinary bailee for hire, whilst the nature of his business 
 renders him a common earlier still. Is there any good sense in holding 
 that a railroad company, whose only business is to carry passengers and 
 goods, and which was created and established for that purpose alone, is 
 changed to a private carrier for hire by a mere contract with a cus- 
 tomer, whereby the latter assumes the risks of inevitable accidents in 
 the carriage of his goods? Suppose the contract relates to a single 
 crate of glass or crockery, whilst at the same time the carrier receives 
 from the same person twenty other parcels, respecting which no such 
 contract is made ; is the company a public carrier as to the twenty 
 parcels, and a private carrier as to the one ? 
 
 On this point there are several authorities which support our view, 
 some of which are noted. ^ 
 
 A common carrier may undoubtedly become a private carrier, or a 
 bailee for hire, when, as a matter of accommodation or special engage- 
 ment, he undertakes to carry something which it is not his business to 
 carry. For example, if a carrier of produce, running a truck-boat 
 between New York City and Norfolk, should be requested to carry a 
 keg of specie or a load of expensive furniture, which he could justly 
 refuse to take, such agreement might be made in reference to his taking 
 and carrying the same as the parties chose to make, not involving any 
 stipulation contrary to law or public policy. But when a carrier has a 
 regularly established business for canning all or certain articles, and 
 especially if that carrier be a corporation created for the purpose of the 
 carrying trade, and the carriage of the articles is embraced within the 
 scope of its chartered powers, it is a common carrier, and a special 
 contract about its responsibility does not divest it of the character. 
 
 But it is contended, that though a carrier may not stipulate for his 
 own negligence, there is no good reason why he should not be permitted 
 to stipulate for immunity for the negligence of his servants, over whose 
 actions in his absence he can exercise no control. If we advert for a 
 moment to the fundamental principles on which the law of common 
 carriers is founded, it will be seen that this objection is inadmissible. 
 In regulating the public establishment of common carriers, the great 
 object of the law was to secui'e the utmost care and diligence in the 
 performance of their important duties, — an object essential to the wel- 
 fare of every civilized community. Hence the common-law rule which 
 
 ' Davidson v. Graham, 2 Ohio St. 1.31 ; Graham v. Davis, 4 Ohio St. .362 ; Swindler v. Hilliard, 
 2 Rich. L. 2S6; Balier v. Brinson, 9 Rich. L. 201 ; Steele v. Townsend, 37 Ala. 247.
 
 394 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 charged the common carrier as an insurer. Wli}^ charge him as such? 
 Plainly for the purpose of raising the most stringent motive for the 
 exercise of carefulness and fidelity in his trust. In regard to pas- 
 sengers, the highest degree of carefulness and diligence is expressly 
 exacted. In the one case, the securing of the most exact diligence and 
 fidelity underlies the law, and is the reason for it ; in the other, it is 
 directly and absolutely prescribed by the law. It is obvious, therefore, 
 that if a carrier stipulate not to be bound to the exercise of care and 
 diligence, but to be at liberty to indulge in the contrary, he seeks to 
 put off the essential duties of his employment. And to assert that he 
 may do so seems almost a contradiction in terms. 
 
 Now, to what avail does the law attach these essential duties to the 
 employment of the common carrier if they may be waived in respect to 
 his agents and servants, especially where the carrier is an artificial being, 
 incapable of acting except by agents and servants? It is carefulness 
 and diligence in performing the service which the law demands, not an 
 abstract carefulness and diligence in proprietors and stockholders who 
 take no active part in the business. 
 
 To admit such a distinction in the law of common carriers, as the 
 business is now carried on, would be subversive of the very object of 
 the law. 
 
 It is a favorite argument in the cases which favor the extension of the 
 carrier's right to contract for exemption from liabilit}^ that men must 
 be permitted to make their own agreements, and that it is no concern of 
 the public on what terms an individual chooses to have his goods carried. 
 Thus, in Dorr v. New Jersey Steam Naoigation Company ^^ the court sums 
 up its judgment thus: "To say the parties have not a right to make 
 their own contract, and to limit the precise extent of their own respec- 
 tive I'isks and liabilities, in a matter no way affecting the public morals 
 <ir conflicting with the public interests, would, in my judgment, be an 
 unwarrantable restriction upon trade and commerce, and a most palpable 
 invasion of personal right." 
 
 Is it true that the public interest is not affected by individual contracts 
 of the kind referred to? Is not the whole business communit}' affected 
 bj' holding such contracts valid? If held valid, the advantageous posi- 
 tion of the companies exercising the business of common carriers is such 
 that it places it in their power to change the law of common carriers in 
 effect, by introducing new rules of obligation. 
 
 The carrier and his customer do not stand on a footing of equality. 
 
 1 11 N. Y. 485.
 
 IN CASE OF PERSONAL INJURIES. 395 
 
 Supreme Court of the United States. 
 
 The latter is only one individual of a million. He cannot afford to 
 higgle or stand out and seek redress in the courts. His business will 
 not admit such a course. He prefers, rather, to accept any bill of 
 lading, or sign any paper the carrier presents ; often, indeed, without 
 knowing what the one or the other contains. In most cases he has no 
 alternative but to do this or abandon his business. In the present case, 
 for example, the freight-agent of the company testified that though they 
 made forty or fifty contracts every week like that under considera 
 tion, and had carried on the business for years, no other arrangement 
 than this was ever made with any drover. And the reason is obvious 
 enough, — if they did not accept this, they must pay tariff rates. These 
 rates were seventy cents a hundred pounds for carrying from Buffalo 
 to Albany, and each horned animal was rated at 2,000 pounds, making 
 a charge of $14 for every animal carried, instead of the usual charge 
 of $70 for a car-load ; being a difference of three to one. Of course 
 no drover could afford to pay such tariff rates. This fact is adverted 
 to for the purpose of illustrating how completely in the power of the 
 railroad companies parties are, and how necessary it is to stand firmly 
 by those principles of law by which the public interests are protected. 
 
 If the customer had any real freedom of choice, if he had a reason- 
 able and practicable alternative, and if the employment of the carrier 
 were not a public one, charging him with the duty of accommodating 
 the public in the line of his employment, then, if the customer chose 
 to assume the risk of negligence, it could with more reason be said to 
 be his private affair, and no concern of the public. But the condition 
 of things is entirely different, and especially so under the modified 
 arrangements which the carrying trade has assumed. The business 
 is mostly concentrated in a few powerful corporations, whose position in 
 the body-politic enables them to control it. They do, in fact, control 
 it, and impose such conditions upon travel and transportation as they 
 see fit, which the public is compelled to accept. These circumstances 
 furnish an additional argument, if any were needed, to show that the 
 conditions imposed by common carriers ought not to be adverse (to say 
 the least) to the dictates of public policy and morality. The status and 
 relative position of the parties render any such conditions void. Con- 
 tracts of common carriers, like ttiose of persons occupying a fiduciary 
 character, giving them a position in which they <jan take undue advan- 
 tage of the persons with whom they contract, must rest upon their 
 fairness and reasonableness. It was for the reason that the limitations 
 of liability first introduced by common carriers into their notices and 
 bills of lading were just and reasonable, that the courts sustained them.
 
 396 CONTRACTS LIMITING CARRIEK'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 It wns just and reasonable that they should not be responsible for losses 
 happening by sheer accident, or dangers of navigation that no human 
 skill or vigilance could guard against ; it was just and reasonable that 
 they should not be chargeable for money or other valuable articles liable 
 to be stolen or damaged, unless apprised of their character or value ; it 
 was just and reasonable that they should not be responsible for articles 
 liable to rapid decay, or for live animals liable to get unruly from fright, 
 and to injure themselves in that state, when such articles or live animals 
 became injured without their fault or negligence. And when any of 
 these just and reasonable excuses were incorporated into notices or 
 special contracts assented to by their customers, the law might well give 
 effect to them without the violation of any important principle, although 
 modifying the strict rules of responsibility imposed by the common law. 
 The improved state of society and the better administration of the laws 
 had diminished the opportunities of collusion and bad faith on the part 
 of the carrier, and rendered less imperative the application of the iron 
 rule that he must be responsible at all events. Hence the exemptions 
 referred to were deemed reasonable and proper to be allowed. But the 
 proposition to allow a public carrier to abandon altogether his obliga- 
 tions to the public, and stipulate for exemptions that are unreasonable 
 and improper, amounting to an abdication of the essential duties of his 
 employment, would never have been entertained by the sages of the 
 law. 
 
 Hence, as before remarked, we regard the English statute, called the 
 Railway and Canal Traffic Act, passed in 1854, which 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 reasonable, as 
 substantially a return to the rules of the common law. It would have 
 been more strictly so, perhaps, had the reasonableness of the contract 
 been referred to the law, instead of the individual judges. The deci- 
 sions made for more than half a century before the courts commenced 
 the abnormal course which led to the necessity of that statute, giving 
 effect to certain classes of exemptions stipulated for by the carrier, 
 may be regarded as authorities on the question as to what exemptions 
 are just and reasonable. So the decisions of our own courts are entitled 
 to like effect when not made under the fallacious notion that every 
 special contract imposed by the common carrier on his customers must 
 be carried into effect, for the simple reason that it was entered into 
 without regard to the character of the contract and the relative situa- 
 tion of the parties. 
 
 Conceding, therefore, that special contracts made by common car-
 
 IN CASE OF PERSONAL INJURIES. 397 
 
 Supreme Court of the United States. 
 
 riers with their customers, limiting their liability, are good and valid, so 
 far as they are just and reasonable, — to the extent, for example, of 
 excusing them for all losses happening by accident, without any negli- 
 gence or fraud on their part, — when they asked to go still further, and to 
 be excused from negligence, an excuse so repugnant to the law of 
 their foundation and to the public good, they have no longer any plea 
 of justice or reason to support such a stipulation, but the contrary. 
 And then, the inequality of the parties, the compulsion under which 
 the customer is placed, and the obligations of the carrier to the public, 
 operate with full force to divest the transaction of validity. 
 
 On this subject, the remarks of Chief Justice Redfield, in his recent 
 collection of American Railway Cases, seem to us eminently just. "It 
 being clearly established, then," says he, "that common carriers have 
 public duties which they are bound to discharge with impartiality, we 
 must conclude that they cannot, either by notices or special contracts, 
 release themselves from the performance of these public duties, even 
 by the consent of those who employ them ; for all extortion is done by 
 the apparent consent of the victim. A public officer or servant who 
 has a monopoly in his department has no just right to impose onerous 
 and unreasonable conditions upon those who are compelled to employ 
 him." And his conclusion is, that, notwithstanding some exceptional 
 decisions, the law of to-day stands substantially as follows: " 1. That 
 the exemption claimed by carriers must be reasonable and just; other- 
 wise it will be regarded as extorted from the owners of the goods by 
 duress of circumstances, and therefore not binding. 2. That every 
 attempt of carriers, by general notices or special contract, to excuse 
 themselves from responsibility for losses or damages resulting in any 
 degree from their own want of care and faithfulness, is against that 
 good faith which the law requires as the basis of all contracts or 
 employments, and, therefore, based upon principles and a policy which 
 the law will not uphold." 
 
 The defendants endeavor to make a distinction between gross and 
 ordinary negligence, and insist that the judge ought to have charged 
 that the contract was at least effective for excusing the latter. 
 
 We have already adverted to the tendency of judicial opinion adverse 
 to the distinction between gross and ordinary negligence. Strictly 
 speaking, these expressions are indicative rather of the degree of care 
 and diligence which is due from a party, and which he fails to perform, 
 than of the amount of inattention, carelessness, or stupidity which he 
 exhibits. If very little care is due from him, and he fails to bestow 
 that little, it is called gross negligence. If very great care is due, and
 
 398 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Railroad Company v. Lockwood. 
 
 he fails to come up to the mark required, it is called slight negligence. 
 And if ordinary care is due, such as a prudent man would exercise in 
 his own affairs, failure to bestow that amount of care is called ordinary 
 negligence. In each case, the negligence, whatever epithet we give it, 
 is failure to bestow the care and skill which the situation demands ; and 
 lionce it is more strictly accurate, perhaps, to call it simply " negligence." 
 And this seems to be the tendency of modern authorities.^ If they 
 mean more than this, and seek to abolish the distinction of degrees of 
 care, skill, and diligence required in the performance of various duties, 
 and the fulfilment of various contracts, we think they go too far ; since 
 the requirement of different degrees of care in different situations is 
 too firmly settled and fixed in the law to be ignored or changed. The 
 compilers of the French Civil Code undertook to abolish these distinc- 
 tions by enacting that " every act whatever of man that causes damage 
 to another, obliges him by whose fault it happened to repair it." ^ 
 TouUier, in his Commentary on the Code, regards this as a happy 
 thought, and a return to the law of nature. ^ But such an iron rule 
 is too regardless of the foundation principles of human duty, and 
 must often operate with great severity and injustice. 
 
 In the case before us, the law, in the absence of special contract, 
 fixes the degree of care and diligence due from the railroad company to 
 the persons carried on its trains. A failure to exercise such care and 
 diligence is negligence. It needs no epithet properly and legally to 
 describe it. If it is against the policy of the law to allow stipulations 
 wliich will relieve the company from the exercise of that care and 
 diligence, or which, in other words, will excuse them for negligence 
 in the performance of that duty, then the company remains liable for 
 such negligence. 
 
 The question whether the company was guilty of negligence in this 
 case, which caused the injury sustained by the plaintiff, was fairly left 
 to the jury. It was unnecessary to tell them whether, in the language 
 of law-writers, such negligence would be called gross or ordinary. 
 
 The conclusions to which we have come are : — 
 
 First, That a common carrier cannot lawfully stipulate for exemption 
 from responsibility, when such 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 
 
 1 1 Smith's Ld. Cas. (7th Am. ed.) 453 ; Story General Iron Screw CoHier Co., L. R. 1 C. P. 
 
 on Bail., § 571; Wyld v. Pickford, 8 Mee. & 600; PhUa. etc. R. Co. v. Derby, 14 How. 486; 
 
 W. 443; Hintonv.Dibbin, 2 Q.B. 661; Wilson s. c. ante, p. 31; Steamboat New World v. 
 
 V. Brett, 11 Mee. & W. 115; Beal v. South King, 16 How. 474; s. c. ante, p. 175. 
 Devon R. Co., 3 Hurl. & Colt. 337; Grill v. 2 Art. 1382. » Vol. 6, p. 243.
 
 IN CASE OF PERSONAL INJURIES. 399 
 
 Notes. 
 
 a common carrier to stipulate for exemption from responsibility for the 
 negligence of himself or his servants. 
 
 Thirdly^ That these rules apply both to carriers of goods and carriers 
 of passengers for hire, and with special force to the latter. 
 
 Fourthly, That a drover travelling on a pass, such as was given in 
 this case, for the purpose of taking care of his stock on the train, is a 
 passenger for hire. 
 
 These conclusions decide the present case, and require a judgment of 
 affirmance. We purposely abstain from expressing any opinion as to 
 what would have been the result of our judgment had we considered 
 the plaintiff a free passenger instead of a passenger for hire. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 1 . Validity of Contract limiting Liability of Carrier to Passenger travel- 
 ling upon a Free Pass. — The principle is well settled that a carrier owes the 
 same duty of protection to a simply gratuitous passenger as to a passenger for 
 hire.i It is customary, however, for railway companies to insert in free passes a 
 stipulation whereby the passenger agrees to exempt the carrier from liability for 
 every species of injury resulting from any cause whatever. Contracts of this 
 character are generally to the effect that " the person accepting this free ticket, 
 in consideration thereof, assumes all risk of all accidents, and expressly agrees 
 that the company shall not be liable, under any circumstances, whether of negli- 
 gence by their agents or otherwise, for any injury to the person or for any loss 
 or injury to the property of the passenger using the ticket." The validity of this 
 contract is in some cases denied in toto, as being void because against public 
 policy.* 
 
 The considerations upon which such a view of the contract is taken are, that 
 although it may be true as a general proposition that a person may waive a pro- 
 vision or rule of law intended for his benefit, yet the State has an interest as 
 parens patrice in the preservation of the lives of its citizens, and that a contract 
 of this character is void for the reason that the life of a person accepting its 
 benefits is placed in jeopardy because of the relaxation of the strict rule of 
 responsibility on the part of common carriers (the outgrowth of public policy) ; 
 
 1 Phila. etc. R. Co. v. Derby, ante, p. 31; lowing etatnte: "Every railroad company 
 Steamboat New World v. King, ante, p. 175; ehail be liable for all damages sustained by 
 Indianapolis.etc.R. Co. ». Beaver, 41 Ind. 493. any person, including employees of the 
 
 2 Jacobus V. St. Paul etc. R. Co., 20 Minn. company, in consequence of any neglect of 
 125; s. c. 1 Cent. L. J. 375; Indiana etc. R. the agents or by any mismanagement of the 
 Co. V. Mundy, 21 Ind. 48; Knowlton v. Erie engineers or other employees of the corpo- 
 R. Co., 19 Ohio St. 260. See also Railway Co. ration, to any person sustaining such dam- 
 ». Stevens, 95 U. S. 655, 660; Lackawanna etc. age, all contracts to the contrary notwith- 
 R. Co. V. Chenewith, 52 Pa. St. 382. In Iowa, standing." Rose r. Des Moines etc. R. Co., S* 
 such a contract is rendered void by the fol- Iowa, 2-16, 250.
 
 400 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Notes. 
 
 and further, because the influence of such a contract is demoralizing, as tending 
 to lessen the care of the company and its servants for the safety of other pas- 
 sengers. ' 
 
 On the other hand, it is said that the mere fact that a man's occupation is that 
 of a common carrier should not prevent him from being able to make a bargain 
 ■with another as a gratuitous bailee, and that railway companies and other cor- 
 porations should have this privilege. " I fully agree with the able opinion of the 
 Supreme Court that the contract now under consideration was not made with 
 the defendants in their character as common carriers. The deceased did not 
 choose to bargain with them in their general employment, in which they hold 
 themselves ready to transport passengers for hire, but asked and accepted from 
 them a gratuity."^ In the late case of Bailway Company v. Stevens,^ the court 
 did not find it necessary to pass upon this point. Bradley, J., said: "It is 
 often asked with apparent confldence, ' May not men make their own contracts ; 
 or, in other words, may not a man do what he will with his own? ' The question 
 at first sight seems a simple one. But there is a question lying behind that : 
 ' Can a man call that absolutely his own which he holds as a great public trust, 
 by the public grant, and for the public use as well as his own profit?' The 
 business of the common carrier, in this country at least, is emphatically a branch 
 of the public service ; and the conditions on which that public service shall be 
 performed by private enterprise are not yet entirely settled." In Great Britain, 
 however, there seems to be no objection to contracts of this character on the 
 ground that they are contrary to public policy.* 
 
 § 2. Drovers' Passes. — When stock is shipped upon a railroad, it is customary 
 to present the person in charge and his assistants with " drovers' passes," which 
 generally entitle the holder to accompany the stock to their destination and 
 return. Such passes contain the usual stipulation that the person using the 
 same holds the company exempt from responsibility for all injuries caused by 
 the negligence of the company or its servants. The cases are not harmonious 
 as to the status of a person using a pass of this kind. By some courts the holder 
 is regarded as a passenger for hire, by reason of the contemporaneous contract 
 for carriage of cattle, and, notwithstanding such release, competent to claim the 
 protection due to other passengers who have paid the regular fare. In the view 
 of others, the holder of such a pass enjoys a mere gratuity or concession on the 
 part of the railroad company, and therefore is bound "Ijy the release, the only 
 question in such cases being the construction of the release, — e.g., whether the 
 railroad company wUl be relieved, by virtue of its terms, from the consequences 
 of gross negligence. 
 
 The decision in Bailroad Company v. Lockwood ^ is based on the grouna that 
 
 > Jacobus V. St. Paul etc. E. Co., supra. ' 95 U. S. 655, 660. 
 
 But contra, see Kinney v. Central R. Co., 34 * McCawley v. Furness R. Co., L. R. 8 Q. B. 
 
 N. J. L. 513, 516; s. c. 32 N. J. L. 407; Wells v. 67; 8. c. 42 L. J. (Q. B.) 4; 21 Week. Rep. 140; 
 
 New York etc. R. Co., 24 N. Y. 181, 185. 27 L. T. (N. s.) 485; Gallin v. London etc. B. 
 
 « Van Syckel, J., in Kinney v. Central R. Co., L. R. 10 Q. B. 212; s. c. 44 L. J. (Q. B.) 89; 
 
 Co., a4 N. J. L. 513, 515 ; s. c. 32 N. J. L. 407. 23 Week. Rep. 308 ; 32 L. T. (N. 8.) 550 ; 2 Cent. 
 
 See also Bissell v. New York etc. R. Co., 25 L. J. 217; Duff v. Great Northern R. Co. 
 
 N. Y. 442; Perkins v. New York etc. R. Co., (Irish High Ct. Just., Exch. Div., February 
 
 34 N. Y. 196; WeUs v. New York etc. R. Co., 19, 1379), 41 L. T. (N. 8.) 197; a. c. 20 Alb. L. 
 
 24 N. Y. 181 ; Knowlton v. Erie R. Co., 19 Ohio J. 398. 
 
 St. 260. 6 ^„<e, p. 378.
 
 IN CASE OF PERSONAL INJURIES. 401 
 
 Stipulations in Drovers' Passes. 
 
 the plaintiff was a customer, having no reasonable and practicable alternative of 
 transacting his business other than by accepting such a pass, and that the ine- 
 quality of the parties, the compulsion under which the customer is placed, and 
 the obligations of the carrier to the public, operate vrith full force to divest the 
 transaction of validity. Precisely this conclusion, on identical facts, has been 
 reached in other cases.i But in Bissell v. New York, etc. Bailroad Company ' 
 the contrary view was taken. Smith, J., held that there was no consideration, 
 in the technical sense of the term, arising out of the contract of carriage of cat- 
 tle which could constitute a consideration for the ordinary drovers' pass, thereby 
 rendering the person carried upon it a passenger for hire, saying: "It is un- 
 doubtedly true that he received such free ticket, and it was given him by the 
 defendants in consideration of the business and profits received from him from 
 the freight of the stock which he accompanied. So, in all cases when free 
 tickets are given, I suppose there is some consideration Qf interest or profit or 
 advantage received or expected, which constitutes the inducement to the giving 
 of the ticket. In this sense, there would probably seldom if ever be given by a 
 railroad company a strictly free ticket." From this view Denio, C. J., Suther- 
 land and Wright, JJ., dissented. 
 
 Previous to this decision, and in the same year, this court had held, in the case 
 of Smith V. New York, etc. Railroad Company,'^ that a person travelling upon a 
 drover's pass was not to be regarded as a gratuitous passenger. It may now be 
 considered as the settled law of this State that a person riding on such a pass is 
 not to be considered as a passenger for hire ; at least this position is not ques- 
 tioned in subsequent cases of this character.* And such would seem to be the 
 law of England.* 
 
 ' Cleveland etc. R Co. v. Curran, 19 Ohio agents or otherwise," for the purpose r . 
 St. 1; Ohio etc. R. Co. v. Selby, 47 Ind. 471; seeing the superintendent of the road in re- 
 Pennsylvania R. Co. V. Henderson, 51 Pa. St. gard to introducing a patent car- coupling of 
 315; Flynn v. Phila. etc. R. Co. 1 Houst. which the plaintiff was the inventor. The 
 469. In Graham v. Pacific R. Co., 66 Mo. defendants had agreed to pay the plaintiff's 
 536, the plaintiff accompanied a load of expenses upon this trip, and incidentally 
 stock to St. Louis upon a di-over's pass to St. thereto had given him this pass. Bradley, 
 Louis and return. On his return, he got upon J., was of opinion that the transportation of 
 an accommodation-train which stopped short the plaintiff was in no sense a matter of 
 of the point designated in the pass, his in- charity or gratuity. The plaintiff was a pas- 
 tention being to stop at a way-station. The senger for hire, and as such entitled to all 
 conductor refused to honor this pass upon the rights of other passengers, notwith- 
 his train, and for non-payment of fare he standing the stipulation upon the pass. 
 was put off. A verdict for the plaintiff was - 25 N. Y. 442, 453 (reversing s. c. 29 Barb. 
 sustained. The same court has held that a 602). See also Boswell v. Hudson etc. R. Co., 
 pass obtained by a drover for his wife, on the 10 Abb. Pr. 442. 
 fraudulent representation that she owned a ^ 24 N. Y. 222; s. c. 29 Barb. 132. 
 portion of the stock which he had shipped, * Stinson v. New York etc. R. Co., 32 N. Y. 
 confers no rights upon her. Brown v. Mis- 333; Poucher v. New Y'ork etc. R. Co., 49 N. 
 souri etc. R. Co., 64 R[o. 536. See also Rail- Y. 263. 
 
 way Co. V. Stevens, 95 U. S. 6.55, in which case ^ McCawIey v. Furness R. Co., L. R. 8 Q. 
 
 the court realUrmed its decision in Railroad B. 57; «. c. 42 L. J. (Q. B.) 4; 21 Week. Rep. 
 
 Co. V. Lockwood, supra. The facts of this 140; 27 L. T. (N. 8.) 485 ; Gallin v. London etc. 
 
 case were that the plaintiff, at the request of K. Co., L. R. 10 Q. B. 212 ; s. c. 44 L. J. (Q. B.) 
 
 the defendants, was travelling upon their 89; 23 Week. Rep. 308; 32 L. T. (N. s.) 550; 2 
 
 line upon a free pass exempting the company Cent. L. J. 217; Duff v. Great Northern R. 
 
 from the consequences of " negligence by its Co., 41 L. T. (N. 8.) 197; 8. c. 20 Alb. L. J. 398. 
 
 26
 
 402 CONTRACTS LIMITING CARRIER'S LIABILITY. 
 
 Notes. 
 
 § 3. What Negligence is covered by such a Release. — When it is settled 
 that the contract of release contained in a free pass is not against public policy, 
 the question arises, What negligence is covered by its terms? Upon this point, 
 also, there is a conflict of authority. Although a company may stipulate for an 
 exemption from the consequences of negligence of its servants, yet it cannot do 
 so in regard to negligence which is imputable to the corporation itself.^ In 
 Bissell V. New York, etc. Bailroad Company,'^ the Supreme Court held that gross 
 negligence could not be excused by contract, in reference to passengers for hire; 
 but the Court of Appeals took a different view, holding the person injured in 
 this case was not a passenger for hire, and that the company were shielded by 
 the contract from the consequences of even gross negligence on the part of its 
 servants. And this is the rule in England in regard to this phase of the con- 
 tract.' In Kinney v. Central Railroad Company,*^ it was not expressly decided 
 that "gross" negligence would be included in such a contract, but the court 
 evidently leaned to this opinion, and deprecated the use of terms indicating 
 degrees of negligence. But elsewhere it is settled that such a contract does not 
 relieve the company from the consequences of the gross negligence of its ser- 
 vants.'' 
 
 But if a passenger is guilty of fraud in using a free pass issued to a different 
 person, which is not transferable, pretending that he is the person to whom it 
 was issued, the company will be liable only for gross negligence which would 
 amount to wilful injury.^ When a person has accepted a free pass which guar- 
 antees the usual exemption to the carrier from the consequences of negligence, 
 the carrier will be so protected although the accident occurs before the journey 
 has commenced, while the holder of the pass is on the premises with a view to 
 taking his departure,' or is injured after leaving the train, in the course of his 
 departure from the defendant's premises.^ 
 
 1 Perkins v. New York etc. R. Co., 24 N. Y. ministrator, 23 Pa. St. 526; Illinois etc. R. 
 
 196. Co. V. Read, 37 111. 484; Indiana etc. R. Co. v. 
 
 = 25 N. Y. 442; s. c. 29 Barb. 602. See also Mundy, 21 Ind. 43; Toledo etc. R. Co. v. 
 
 Wells V. New York etc. R. Co., 24 N. Y'. 181; Beggs, 85 111. 80. 
 
 Perkins v. New York etc. R. Co., 24 N. Y'. 196, « Toledo etc. R. Co. v. Beggs, supra. 
 
 205. Contra, Boswell v. Hudson etc. R. Co., " Poucher v. New York etc. R. Co., 49 N. 
 
 5 Bosw. 699. Y. 263. But see Stiuson v. New York etc. R. 
 
 3 McCawley v. Furness R. Co., and Gallin Co., 32 N. Y. 333. 
 
 V. London etc. R. Co., supra. 8 Gallin v. London etc. R. Co., L. R. 10 Q. 
 
 * 34 N. J. L. 513, 517. B. 212 ; s. c. 44 L. J. (Q. B.) 89 ; 23 Week. Rep. 
 
 6 Arnold v. Illinois etc. R. Co., 83 HI. 273; 308; 32 L. T. (N. 8.) 550; 2 Cent. L, J. 217. 
 Pennsylvania R. Co. v. McCloskey's Ad-
 
 CHAPTEE XII. 
 
 USE OF ANOTHER'S MEANS OF TRANSPORTATION — LIA- 
 BILITY OF CARRIER TO PASSENGER FOR CONSEQUEN- 
 TIAL INJURIES. 
 
 Leadlng Cases: 1. Great Western Boihoay Company v. Blake. — Liability of 
 railway company in using another's track. 
 2. McElroy v. Nashua and Loioell Bailroad Corporatioyi. — 
 Liability of railway company for injury to their passen- 
 gers through negligence of another company using their 
 track. 
 
 Notes: §1. General statement of liability. 
 
 2. Carrier chargealjle with the negligence of the company 
 
 whose line is used. 
 
 3. Carrier usiug the line of another company under statutory 
 
 authority. 
 
 4. Parties to action — Bespondeat superior. 
 
 1. liability of railway carrier in using another's track, 
 Great Western Railway Company v. Blake.* 
 
 English Court of Exchequer Chamber, 186 2. f 
 
 1. The Principle of this Liability stated. — Railway companies are bound to use due and 
 
 reasonable care to keep the line over which they contract to carry passengers in sale 
 condition. This obligation attaches where they convey their passengers over the line 
 of another company. The latter is regarded as the agent of the contracting carrier for 
 this purpose. 
 
 2. Case in Judgment. — The plaintiff purchased a ticket of the defendants, paying his 
 
 fare to a station beyond the defendants' line, and upon a connecting line. By arrange- 
 ment between the two companies, the defendants were permitted to use the line of the 
 other company for the transportation of their carriages, and the fares were apportioned 
 between them. The i)laintiff continued in the same carriage throughout the entire 
 journey, and after the train had passed upon the line of the other company, it came 
 into collision with a locomotive left on that line by the servants thereof, injuring the 
 plaintiff. There was no negligence on the part of the driver of the defendants' train. 
 The defendants were hold responsible for this injury, under their implied contract to 
 maintain the line over which the plaintiff must travel in their carriages, in a condition 
 fit for traffic. 
 
 ■► Reported, 7 Hurl. & N. 987. 
 
 t This case was heard before Cockburn, 0. J., Wightman, Crompton, Keating, Byles, and 
 Mellor, JJ. 
 
 (403)
 
 404: USE OF ANOTHER CARRIER'S ROAD. 
 
 Great Western Railway Company v. Blake. 
 
 Error on a bill of exceptions. The declaration stated that the 
 plaintiff, at the i*eqiiest of the defendants, became and was a passenger 
 in a carriage, being one of a train of railway carriages, to be by the 
 defendants safely and securely carried and conve3'ed on certain rail- 
 way's, on a journey from one place to another distant place, — to wit, 
 from London to Milford, — for hire and reward to the defendants in 
 that behalf. Yet the plaintiff saith, that, by and through the negligence, 
 carelessness, default, and improper conduct of the defendants, the car- 
 riage in which the plaintiff was carried and conve^-ed during the said 
 journey, whilst the plaintiff was such passenger as aforesaid, was sud- 
 denly checked by, and received a sudden and violent concussion from, 
 the train of carriages, of wliich the said carriage formed one, coming 
 into contact and colUsion with, and running and striking with great 
 force and violence against and upon, a locomotive-engine ; and thereby 
 the plaintiff was greatly and permanently injured in his body, etc. 
 
 Pleas : First, not guilty ; secondly, that the plaintiff did not become, 
 nor was he, a passenger to be by the defendants safel}^ or securely car- 
 ried or conve3'ed on the said journey in the declaration mentioned, as 
 alleged. Issues thereon. 
 
 The cause was tried before Martin, B., at the London Sittings after 
 Trinity Term, 1860, when the following facts appeared : The defend- 
 ants were common carriers of passengers for hire, and have a station at 
 Paddington, in London, and contract with passengers by one contract, 
 and for one entire fare, to carry and convey them from Paddington to 
 Milford in Pembrokeshire. On the evening of the 30th of December, 
 1859, the plaintiff purchased the usual ticket from the defendants and 
 paid his fare, and became a passenger to be conveyed by the defend- 
 ants from Paddington to Milford by the mail-train. The contract 
 l)etween the plaintiff and defendants was the ordinary' one which the 
 law implied. The line of railway belonging to the defendants termi- 
 nates at Grange Court, a short distance beyond Gloucester, and the 
 line from thence to Milford belongs to the South Wales Railway Com- 
 pany. There is an arrangement between the two companies, under 
 which the lines are worked and the fares paid by the passengers appor- 
 tioned between them. The plaintiff was convej-ed, in the same carriage 
 which he entered at Paddington, past Grange Court and onwards towards 
 Milford. After the train had passed on to the South Wales line, it came 
 into collision with a locomotive engine left on that line by the servants 
 of the South Wales Railway Compan}-, and the plaintiff was seriously 
 injured by the concussion. There was no negligence on the part of 
 the driver of the train.
 
 INJURIES TO PASSENGERS. 405 
 
 English Court of Exchequer Chamber. 
 
 The learned judge told the jury that the circumstance that the engine 
 was left upon the line by the servants of the South Wales Railway Com- 
 pany, and not by the servants of the defendants, did not relieve the 
 defendants from their legal liability, but that they were by law respon- 
 sible for such negligent and improper act; whereupon the jury found a 
 verdict for the plaintiff. 
 
 The defendants' counsel having tendered a bill of exception to the 
 above ruling, and proceedings in error having been taken thereon, the 
 case was now argued by — 
 
 Bovill (with whom was Digby), for the plaintiffs in error (the defend- 
 ants below). — The injury was caused by the negligence of the South 
 Wales Railway Company, not of the Great Western Railway Company. 
 [CocKBURN, C. J. — The contract was with the Great Western Railway 
 Company to carry the whole distance from Paddington to Milford. 
 Formerly, if a person booked a place in a stage-coach for a particular 
 distance, though the coach proprietor made a subcontract with another 
 person to horse the coach for some part of the way, he was liable for 
 negligence on that part. So here there is a contract to carry the plain- 
 tiff to a given place, and a subcontract to carry on the line of another 
 company.] The Great Western Railway Company merely run their 
 carriages over the South Wales line. The servants on that line are the 
 sei-vants of the South Wales Company, over whom the Great Western 
 Railway Company have no control. [Cockbdrn, C. J. — It was part of 
 their contract that they would take reasonable care to keep the railway 
 in a secure state throughout the whole distance, and they have failed to 
 discharge that duty. It is now settled that where a person sends goods 
 by a railway company who use for a portion of the distance the line of 
 another company, if the goods are lost, the remedy is against the com- 
 pany with whom the contract was made.] There is no undertaking by 
 the Great Western Railway Company that the line of railway they use 
 shall be in a safe condition. In the case of goods, the liability depends 
 upon whether the company are common carriers throughout the whole 
 distance ; and if so, they are insurers, except as to the act of God and 
 the queen's enemies. The 8 and 9 Vict., c. 20, § 87, enables one com- 
 pany to contract with another for passing over their railway ; and by 
 the eighty-ninth section, the company is not to be liable to a greater 
 extent than common carriers. Coach proprietors are not liable for 
 injury arising from accident, where there is no negligence in the 
 driver. 1 An undertaking "safely and securely " to carry, only creates 
 
 1 Aston V. Heaven, 2 Esp. 533; Crofts v. Waterhouse, 3 Ring. 319.
 
 40fi USE OF ANOTHER CARRIER'S ROAD. 
 
 Great Western Railway Company v. Blake. 
 
 a duty to use an ordinary degree of care.^ The plaintiff below must 
 establish that the arrangement under which the Great Western Railwa}^ 
 Company used the line of the South Wales Company made the servants 
 of the latter, who caused the injury, the servants of the former. But 
 the mere bargain did not transfer the liability for negligence from one 
 compan}' to the other. [Cockburn, C. J. — What is there, in a contract 
 by a passenger with a railway company, to make their liability less over 
 one portion of the line over which they carry than another?] The 
 Great Western Railway Company have merely permission to use the 
 line of the South Wales Railway, and by giving tickets to passengers to 
 travel over that line, they undertake that they will use ordinary care, 
 not that they will be responsible for the acts of servants over whom they 
 have no control. [Ckompton, J. — Their contract is, "I will carry 
 you by myself and my subcontractor."] He also referred to Latch v. 
 Runiner Raihvay Company.- 
 
 Parry, Serjt. (with whom was Archibald), appeared for the defend- 
 ant in error (the plaintiff below), but was not called upon to argue. 
 
 Cockburn, C. J. — I am of opinion that the direction of the learned 
 judge was right, and that the judgment of the court below ought to be 
 affirmed. It has been settled that where a railway company enters into 
 a contract for the conveyance of goods to a distance extending not 
 merely over their own line, but over the whole or some portion of any 
 other line of railway with which it is connected, the company so con- 
 tracting is liable not only for the loss of the goods upon their own line, 
 but also in respect of the loss of goods upon the line not their own. 
 I think that position obtains in the case of passengers. If a railway 
 compan}'' 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 contracting incurs all the liability which would 
 attach to them if they had contracted solely to carry over their own 
 line. Here there was a contract between the Great Western Railway 
 Company and the South Wales Railway Company, by which the former 
 are enabled to carry passengers not only over their own line, but also 
 over the South Wales line. Under these circumstances, the Great West- 
 ern Railway Company became responsible for the safety of every pas- 
 senger throughout the distance for which they gave him a ticket, just as 
 if they had conveyed him on their own line. 
 
 This brings us to the simple question how far the company are bound 
 
 1 Ross V. Hill, 2 C. B. 877. » 27 L. J. (Exch.) 165.
 
 INJURIES TO PASSENGERS. 407 
 
 English Court of Exchequer Chamber. 
 
 to use reasonable care for the safety of passengers, as well on their own 
 line as on the passage over another line. Looking at the construction 
 of railways, and the powers which railway companies enjoy, there is 
 no doubt it is part of the contract that they shall use reasonable care to 
 maintain their railway in proper condition for the conveyance of pas- 
 sengers. This is not like the case of a stage-coach proprietor, because 
 the road is not in his hands, and he has no means of securing its proper 
 condition. When the contract is entered into, the road would be in a 
 certain condition, without any thing being required to be done on the 
 part of the coach proprietor to keep it in a safe condition. Railway 
 companies ought at least to use due and reasonable care to keep the 
 line over which they contract to carry passengers in a safe condition. 
 There is no doubt that is the obligation which attaches to a railway 
 company who undertake to convey passengers through the whole dis- 
 tance on their line ; and if by arrangement with another company they 
 convey passengers over the whole or part of another line, the same obli- 
 gation attaches, and they make the other company their agent, and on 
 their part they undertake that the other company shall keep their line 
 in a proper condition. 
 
 It is unnecessary to say whether the plaintiff below would have had 
 a right of action against the South Wales Railway Company ; at all 
 events, he has against the Great Western Railwaj^ Company. It would 
 be inconsistent with public convenience and safety to put any other 
 construction on such a contract than that the Great Western Railway 
 Company should be primarily liable to the plaintiff below, and should 
 take their remedy against the South Wales Compan}', whose servants, 
 by their negligence, have caused the accident ; whilst to hold that the 
 Great Western Railway Company is liable, is not only consistent with 
 public convenience, but also the true construction of the contract. 
 
 WiGHTMAN, J. — I concur in the opinion, though not without some 
 hesitation. 
 
 Cromptox, J. — I am of the same opinion. When the Great Western 
 Railway Company gave a ticket to the plaintiff to travel from Padding- 
 ton to Milford, they took upon themselves all the responsibilities by 
 which a railway company is bound with reference to the carriage of 
 passengers the whole distance. I say the carriage of passengers, 
 because Mr. Bovill has distinguished between passengers and goods as 
 regards the extent of liability. When railways were first established, 
 some companies would only undertake to convey passengers part of the 
 way on a long journey on their own line ; others conveyed passengers
 
 408 USE OF ANOTHER CARRIER'S ROAD. 
 
 Great Western Railway Company v. Blake. 
 
 beyond their own lines, but refused to be responsible for what might 
 occur on a line not their own ; others made an arrangement with other 
 companies by which, for one fare for the whole distance, they under- 
 took to conve}' passengers to particular places on the line of another 
 company. Here, the Great Western Railway Company having made 
 arrangements with the South Wales Railway Company for the eai'riage 
 of passengers to Milford, and for dividing the fares between them, one 
 of the responsibilities which they took upon themselves was that the 
 line should be safe and secure the whole distance. Whether, under 
 these circumstances, a passenger would have a remedy against the South 
 Wales Railway' Company may be doubtful, because there is no privity 
 between them ; but the Great Western Railway Company has a remedy 
 against the South Wales Railway Company. 
 
 Btles, J. — I am of the same opinion. The express finding that by 
 arrangement between the two companies the fares are apportioned 
 between them, involves this proposition: that when the Great Western 
 train comes upon the South Wales line, as the profits are divided 
 between the Great Western and South Wales companies, for the purpose 
 of this action the South Wales line became the Great Western line, 
 and the Great Western Company were bound to take due care with 
 respect to the machinery, — that is, the engines, carriages, and line. It 
 is sufficient to rest there ; but, if necessary, I should go further, and 
 SH}^ that, without the arrangement as to profits, the Great Western Com- 
 pany, by their contract with the plaintiff below, were as much bound to 
 take care of the machinery as if the whole line was their own. Possibly 
 the South Wales Railway Company might have been liable to the plain- 
 tiff below ; yet here is a contract from which results a duty on the part 
 of the Great Western Railway Company to take due care that the 
 machinery from Paddington to Milford is safe and secure. 
 
 Keating, J, — I concur in opinion that the ruling of the learned 
 judge was correct. 
 
 Mellor, J. — I am of the same opinion. The effect of the arrange- 
 ment between the two companies was to make the line of the Great 
 Western Company one line from Paddington to Milford. I do not say 
 how it would be if the Great Western Company had run over the line 
 of the South Wales Company on payment of tolls. I do not dissent 
 from what my brother Byles has said on that point ; but I express no 
 opinion upon it, as it is not necessary for the decision of this case. 
 
 Judgment affirmed.
 
 INJUKIES TO PASSENGERS. 
 
 409 
 
 Supreme Judicial Court of Massachusetts 
 
 2, LIABILITY OF RAILWAY COMPANY FOR INJURY TO THEIR PAS- 
 SENGERS THROUGH NEGLIGENCE OF ANOTHER COMPANY USING 
 THEIR TRACK. 
 
 McElroy V. Nashua and Lowell Eailroad Corporation.* 
 Supreme Judicial Court of Massachusetts^ 1849. 
 
 Hon. Lemuel Shaw, Chief Justice 
 " Samuel S. Wilde, 
 *' Charles A. Dewey, 
 " Theron Metcalf, 
 *' Richard Fletcher, 
 
 Judges, 
 
 1. General Principle. — The proprietors of a railroad, as passenger-carriers, are bound to 
 the most exact care and diligence, not only in the management of their trains and cars, 
 hut also in the structure and care of their track and in all the subsidiary arrangements 
 necessary to the safety of passengers. 
 
 3. Illustration. — A railroad company are responsible for an injury sustained by a passen- 
 ger in their cars in consequence of the careless management of a switch by which 
 another railroad connects with and enters upon their road, although the switch is pro- 
 vided by the proprietors of the other road, and attended by one of their servants at 
 their expense. 
 
 This was an action on the case to recover damages of the defendants 
 for an injury alleged to have been sustained by the female plaintiff 
 while riding as a passenger in the defendants' cars from Lowell to 
 Nashua. The case was submitted to the court upon an agreed state- 
 ment of facts. 
 
 The defendants are common carriers, carrying passengers for hire 
 between the above-mentioned places, and the female plaintiff had taken 
 her passage and paid the fare from Lowell to Nashua in the evening 
 train of the defendants. 
 
 By the thirteenth section of the act of incorporation granted to the de- 
 fendants by the Legislature of New Hampshire, power was reserved to 
 authorize any other railroad corporation to connect with, enter upon, and 
 use the Nashua and Lowell Railroad at a point where the Concord Rail- 
 road was afterwards made to enter upon the same, and at the point where 
 the alleged injury was incurred. After the incorporation of the defend- 
 ants, the Legislature of New Hampshire also incorporated the Concord 
 Railroad Corporation, and granted them the right to connect with and 
 enter upon and use the Nashua and Lowell Railroad at the point where 
 they did enter the same, and where the accident happened. 
 
 * Reported, 4 Cush. 400.
 
 410 USE OF ANOTHER CARRIER'S ROAD. 
 
 McElroy v. Nashua and Lowell Railroad Corporation. 
 
 The Concord Railroad Corporation, in accordance with the powers 
 thus granted, made a switch and connecting-track in the defendants' 
 road, so as to pass to and from the same, and entered thereon and 
 placed a switchman there, to let the Concord cars pass on and off the 
 road. This switchman, at the time of the accident and ever before, 
 was the servant of the Concord Railroad Corporation, and was in nowise 
 the servant of the defendants, or in any manner under their authority 
 or control. By an arrangement between the two corporations, the 
 defendants hauled the cars of the Concord Railroad Corporation over 
 their road to Lowell, after they had entered thereon, and also hauled 
 them back from Lowell to a point about a fourth of a mile below the 
 junction of the Concord Railroad, and there detached them and went 
 on over the switcli to the end of the road, leaving the Concord train to 
 follow by force of the momentum previously given to them, but at so 
 slow a speed as to arrive at the switch after the defendants' train had 
 passed, and then to be switched off by the switchman upon the Con- 
 cord Railroad. 
 
 On the evening in question, the Concord train was detached as usual, 
 and the defendants' cars, in the rear of one of which the female 
 plaintiff was, passed on, and the engine, tender, and forward car 
 passed over the switch in safety ; but by the carelessness of the switch- 
 man, the switch became changed, so that the defendants' baggage-car 
 and the passenger-car above mentioned were turned off upon the Con- 
 cord Railroad and bi'oken from the forward cars, and therebj^ and 
 thereon the injury was occasioned for which. this action was brought. 
 
 The defendants were incorporated by the Legislature of New Hamp- 
 shire to build that part of their road which lies in that State, and by 
 the Legislature of this Commonwealth to build that portion of their road 
 which is in this State ; and the two corporations were afterwards united 
 by acts of the Legislatures of this Commonwealth and New Hampshire. 
 The point where the accident happened is in New Hampshire. 
 
 The question of damages only was submitted to the jury, and a 
 verdict was taken by consent for the plaintiff, upon the facts as above 
 stated, subject to the opinion of the whole court. 
 
 J. G. Abbott, for the plaintiffs, cited Ingalls v. Bills,^ Story on Bail- 
 ments,^ Angell on Carriers,^ Stokes v. Saltonstall,'^ Bostwick v. Cham- 
 pion,^ Cole V. Goodwin,^ and Waland v. ElkinsJ 
 
 1 9 Mete. 1 ; 8. c. ante, p. 112. » 11 Wend. 571. 
 
 s §§ 601, 602. 3 §§ 536-.538. • 19 Wend. 251. 
 
 « 13 Pet. 181; 8. c. ante, p. 183. ' 1 Stark. 272.
 
 INJURIES TO PASSENGERS. 411 
 
 Supreme Judicial Court of Massachusetts. 
 
 T. Wentioorth, for the defendants, cited Avgell on Carriers,^ Story 
 on Bailments,^ Bennett v. Button,^ Hawkins v. Hoffman,'^ Boyce v. 
 Anderson,^ and McKinney v. Neil.^ 
 
 Shaw, C. J. — The court are of opinion, upon the facts agreed, that 
 the defendants are liable to the plaintiffs for the damage sustained by 
 the wife whilst travelling in their cars. As passenger-carriers, the 
 defendants were 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 in all the subsidiary arrangements necessary to 
 the safety of passengers. The wife having contracted with the defend- 
 ants and paid fare to them, the plaintiffs had a right to look to them, 
 in the first instance, for the use of all necessar}- care and skill. The 
 switch in question, in the careless or negligent management of which 
 the damage occurred, was a part of the defendants' road, over which 
 they must necessarily carry all their passengers ; and although provided 
 for and attended by a servant of the Concord Railroad Corporation, 
 and at their expense, yet it was still a part of the Nashua and Lowell 
 Railroad, and it was within the scope of their duty to see that the switch 
 was rightly constructed, attended, and managed, before they were justi- 
 fied in carr^'ing passengers over it. Had the action been, in form, on 
 the implied contract of the defendants, in undertaking to carry a pas- 
 senger, to have a safe road and apply and use all necessary care and 
 skill, the liabilit}' of the defendants might have been more clear and 
 manifest ; but the duty is the same, and in most cases of this kind of 
 carelessness, negligence, or want of due skill, in the performance of 
 dutj' undertaken to be done for hire and reward, it is at the election 
 of the plaintiff to declare in assumpsit and rely on the promise, or to 
 declare in tort and rest on the breach of dut}'. Whether the plaintiffs 
 might have maintained an action on the case against the Concord Rail- 
 road Corporation for the negligence of their servant, or whether the 
 defendants may have a remedy over against the Concord Railroad 
 Corporation, by the terms of the statute under which the latter were 
 allowed to come on to the defendants' road, or by the terms of their 
 contract, we give no opinion.''' 
 
 Judgment on the verdict for the plaintiffs. 
 
 » §§ 521, 523. 8 5§ 590, 602. » 2 Pet. 150. 
 
 « 10 N. H. 481; s. c. ante, p. 2. • 1 McLean, 540. 
 
 * 6 Hill, 586. » Waland v. Elkins, 1 Stark. 273.
 
 412 USE OF ANOTHER CARRIER'S ROAD. 
 
 General Statement of Liability. 
 
 NOTES. 
 
 § 1. General Statement of Liability. — To facilitate transportation, it fre- 
 quently becomes necessary for carriers by railway to run their trains over each 
 other's roads. This is effected in various ways: The carrier having reached the 
 terminus of its route, may proceed over some connecting line, retaining full con- 
 trol of its train, paying a toll, or something equivalent, to the owners of the 
 other road ; or it may become necessary for the first carrier to wholly or par- 
 tially abandon the control of its train to the servants of the other company. 
 Injuries to passengers under such circumstances have raised nice questions as 
 to whom the passenger might look for compensation in damages. It sometimes 
 happens, as in McElroy v. Nashua, etc. Bailroad Company,^ that the injury is 
 hardly traceable to any fault on the part of the carrier of the passenger, and 
 sometimes not at all ; however, a simple and severe rule has been quite generally 
 adopted in such cases : viz., to hold the carrier who first received the passenger, 
 and with whom the contract of transportation was made, to the same degree 
 of liability as if this company owned and controlled the entire length of line 
 traversed, the reason being that the carrier having contracted to furnish his 
 passengers with a safe, expeditious, and comfortable passage, is presumed to have 
 the means of so doing, or at least is bound to do it.^ 
 
 § 2. Carrier chargeable wltti the Negligence of the Company whose Line 
 is used. — The cases of Birkett v. Whitehaven Junction Railway Company ^ and 
 L-h'eat Western Railway Company v. Blake * are most frequently cited in this con- 
 nection. In the first of these cases, the plaintiff's intestate bought a ticket of 
 the defendant company. To reach his destination it was necessary for the train 
 of this company to pass over the line of another company. This last company 
 had constructed a self-acting switch upon its line, for the exclusive use of the 
 defendant company for this purpose. The switch was about four yards from a 
 gate on the line of the defendant company. The gate-keeper, a servant of the 
 defendant, was in the habit of looking over the gate to see that the switch was 
 in proper order. The train of the defendant company upon which the plaintiff's 
 intestate was riding ran slowly over this switch, but the points Ijeing turned the 
 wrong way, it collided with some coal-trucks, whereby this passenger w^as killed. 
 There was evidence that such switches as this were liable to get out of order, 
 and the Court of Exchequer Chamber held that it was properly left to the jury 
 to say whether the defendant was not negligent in not having this switch more 
 properly guarded. No opinion w^as given on the general question as to whether 
 a railway company undertakes for the safety of other lines over which its trains 
 travel 
 
 1 Ante,Tp. 409. Murch «. Concord R. Co., 29 N. H. 9; Sey 
 
 2 Birkett v. Whitehaven Junction R. Co., mour v. Chicago etc. R. Co., 3 Biss. 43 
 4 Hurl. & N. 730; Great Western R. Co. Peters v. Rylands, 20 Pa. St. 497; s. c. 1 Phila 
 V. Blake, ante, p. 403; Buxton v. North- 264; McLean v. Burbank, 11 Minn. 277 
 Eastern R. Co., L. R. 3 Q. B.549; Thomas v. Champion v. Bostwick, 11 Wend. 571, 5S1 
 Rhymney R. Co., L. R. 5 Q. B. 22U; s. c. s. c. IS Wend. 175, 181. Contra, Sprague v 
 (affirmed in Exchequer Chamber) L. R. 6 Q. Smith, 29 Vt. 421. 3 4 Hurl. & N. 730. 
 
 B. 266; John v. Bacon, L. R. 5 C. P. 437; < 7 Hurl. & N. 9S7, a7iie, p. 403.
 
 INJURIES TO PASSENGERS. 413 
 
 Negligence of the Company whose Line is used. 
 
 In the other case,i the govei-ning principle of these cases is clearly indicated 
 by CocKBURN, C. J., as follows : " Railway companies ought at least to use due 
 and reasonable care to keep the line over which they contract to carry passengers 
 in a safe condition. There is no doubt that is the obligation which attaches to a 
 railway company who undertake to convey passengers through the whole distance 
 on their line ; and if, by arrangement with another company, they convey pas- 
 sengers over the whole or part of another line, the same obligation attaches, and 
 they make the other company their agent, and on their part they undertake that 
 the other company shall keep their line in proper condition." ^ 
 
 Subsequently, in the Court of Queen's Bench,^ upon the authority of this 
 case, it was held that a railway company were responsible in damages for an 
 injury to a passenger on their train while it was running over the line of another 
 company, the train being thrown from the track by striking a bullock which had 
 strayed upon it by breaking through a defective fence. Lush, J., stated that 
 even in the absence of the foregoing authority he should nevertheless hold that 
 "a company undertaking to carry passengers over another line is answerable for 
 negligence happening on it just as much as if it happened on their own line." * 
 
 The current of authority in this country is much the same as that of the fore- 
 going decisions. Thus, it is said : "By using the railroad of another corporation 
 us a part of their track, whether by couti-act or mere permission, they would 
 ordinarily, for many purposes, ma';e it their own, and would assume towards 
 those whom they had agreed to receive as passengers all the duties resulting 
 from that relation as to the road ; and if accident resulted to such passengers 
 from any failure of duty of the owners of the road, for which they would be 
 i-esponsible if the road was their own, their remedy over would be against the 
 owners."^ 
 
 In a case before Mr. Justice Davis, of the United States Supreme Court, 
 sitting in the Circuit Court,^ where the defendant used the station of another 
 company by arrangement with them, and the plaintiff, a passenger of the 
 defendant, slipped upon some pieces of ice scattered upon the platform of 
 the station, injuring herself, the jury were charged that it was the duty of the 
 defendant to see that the platform used by it was safe and convenient for pas- 
 sengers to get in and out of the cars, regardless of any arrangement with the 
 company owning the building.'' 
 
 The owners of passenger-cars run upon a railroad belonging to the State are 
 liable for an injury sustained by a passenger from the collision of two of their 
 trains passing in the same direction, though the motive power of the road was 
 furnished by the State and was under the control of the State's agents, and 
 though the accident happened through the negligence of the agents of the State. 
 The carrier having contracted with the passenger under such circumstances, is 
 chargeable accordingly .^ 
 
 1 Great Western R. Co. v. Blake, ante, ^ Murch v. Concord R. Co., 29 N. H. 
 p. 40.5. 9, 35. 
 
 2 7 Hurl. & N. 992. « Seymour v. Chicago etc. R. Co., 3 
 
 3 Buxton V. North-Eastern R. Co., L. R. Biss. 43. 
 
 3 Q. B. 549. ' To the same effect is John v. Bacon, L. 
 
 < L. R. 3 Q. B. .W4. Substantially is the R. .') C. V. 4.37. 
 
 language of Bylcs, J., in Great Western R. ^ I'eters v. Rylands, 20 Pa. St. 497; s. c. 1 
 
 Ci). V. Blake, 7 Hurl. & N. 987, 994, ante, p. 403. Phila. 264.
 
 414 USE OF ANOTHER CARRIER'S ROAD. 
 
 Notes. 
 
 So, where it became necessary for a stage-coach to cross a fei'ry, and by the 
 negligence of the proprietoi's of the ferry the life of a passenger on the stage- 
 coach was lost, the owners of the stage-coach were held responsible for this 
 mishap, under their contract with the passenger.i 
 
 Contrary to the foregoing cases is a decision by Redfield, C. J.,^ and, we 
 believe, the only one of its kind in this country. The defendants were trustees 
 operating a railroad upon wliich tlie plaintiff was a passenger. These trustees had 
 an arrangement with another railroad company, upon which freight was received 
 from the defendants' road and transported on the cars of the defendants, a divi- 
 sion of the receipts being made between them. Upon the occasion of injury to 
 the plaintiff, the car in which he was riding was upon the track of the other 
 company, waiting for another train to pass, when a freight-train belonging to 
 such company was carelessly backed into the car in which the plaintiff was 
 seated, whereby he was seriously injured. The learned judge stated that he did 
 not perceive how the ordinary rule of liability of the carrier could apply to a 
 case of this kind, because the party doing the injury was in no manner subject 
 to the control of the defendants, saying: "He [the carrier] cannot be regarded 
 as liable, we think, for all the acts of all the operatives of the companies over 
 whose roads he carries the plaintiff, unless some connection between the roads, 
 of a character similar to that of general partnership or the consolidation of their 
 interests in the carrying business, is shown, which was not done in the present 
 case." 
 
 This case was decided m 1857, since which date there have been many decisions 
 pointedly in conflict with the foregoing remarks. The language of Cockburn, 
 C. J., in Great Western Bailway Covymmj v. Blake ^ is especially noticeable in 
 this connection. The objection to this decision is that it holds the carrier to no 
 higher degree of liability for the negligence of another carrier with whom it 
 has traffic arrangements than for that of a stranger.* It would seem quite 
 reasonable to say that the defendants in this case had, or ought to have had, a 
 thorough knowledge of the perils to which their train would be exposed iu 
 passing over the other road. It is equally reasonable to say that they contracted 
 to protect the plaintiff from these perils of which he could have no definite 
 knowledge; and such, as we have seen, is the result of the authorities.^ 
 
 For the same reason as prevailed in the foregoing cases, if a railroad company 
 permit another company to run trains over its track, and a collision ensues 
 between trains belonging to the different companies, the passengers of the 
 former company injured, in consequence, will have a right of action against their 
 carrier, although the accident may be wholly imputable to the fault of the 
 servants of the latter. This is so because it would be unjust that the carrier, 
 who has been invested with certain franchises for public purposes, should be 
 
 1 McLean v. Burbank, 11 Minn. 277. happened under similar circumstances, a 
 
 2 Sprague v. Smith, 29 Vt. 421. case stronger against the plaintitf than that 
 * 7 Hurl. & N. 987, 992, an<e, p. 403. under discussion, because in the former 
 ■* Latch V. Rumner R. Co., 27 L. J. (Exch.) case the defendants' train ran over the road 
 
 155. on which the accident happened, in pursu- 
 
 5 See in this connection especially Great ance of statutory authority, while the traffic 
 
 AVestem R. Co. «. Blake (ante, p. 403), and arrangements in this case were the result 
 
 Thomas v. Bhymney R. Co. (L. R. 5 Q. B. 226; of private agreement. 
 a. c. L. R. 6 Q. B. 266) , where the accident
 
 INJURIES TO PASSENGERS. 415 
 
 Statutory Authority to use another Carrier's Road. 
 
 permitted to derive a profit therefrom, at an enhanced risli to his passengers, 
 without additional responsibility tlierefor. In a case before Mr. Justice Davis, 
 on the circuit, he charged the jury that if the road on which the accident 
 occurred belonged to the defendant, and, by its charter, vpas under its sole con- 
 trol to carry passengers and property, and if it allowed the trains of another 
 company to run over it under the management of the agents of such company, 
 it should be done in such a manner as not to interfere with the safety of the 
 passengers of the defendant ; that as to such passengers, the fault of the other 
 company in running their train was the fault of the defendant. ^ Similarly it has 
 been held that a railroad company is liable to the owner of stock killed by the 
 train of another company permitted to use its road.* 
 
 § 3. Carrier using the Line of another Company \inder Statutory Author- 
 ity. — In the cases we have previously noticed, the use of the line of one com- 
 pany for the accommodation of another company was purely a matter of private 
 arrangement. It remains to be seen whether the rule adopted in such cases Avill 
 apply where by statute one company is vested with "running powers" over 
 the line of another. This question was raised for the first time in Thomas v. 
 Bhymney Bailway Company ^^ There, the plaintiff took a ticket of the defendants 
 to be carried as a passenger from A., through B., to C. At B. the defendants' 
 line joined the line of another company, over which the defendants had statutory 
 running powers* from B. to C. on the payment of certain tolls, the whole of the 
 traffic arrangements being left by the statute in the control of the company whose 
 line was thus traversed. After leaving B., the train of the defendants in which 
 the plaintiff rode came into collision with a train of the other company, injur- 
 ing the plaintiff. The defendants' servants were not negligent; and the col- 
 lision was owing to the negligence of the servants of the other company in 
 sending on their own train without the proper tail-light, and allowing the 
 defendants' train to proceed on the same track too soon after the other train, 
 without giving any warning to the servants of the defendants in charge. The 
 judges of the Court of Queen's Bench, though hesitating, were of opinion that 
 the rule announced in the previous cases ought to apply in this case. Mellor, 
 J., said: " I confess my present opinion is that the defendants ought not to be 
 lial)Ie, and that a railway company can only be held responsible for the negli- 
 gence of those over whom they have control." ^ Lush, J., who delivered the 
 opinion of the court in Buxton v. North-Eastern Bailway Company,^ stated that 
 the distinction between this and the previous cases was not present to his mind 
 when he decided that case, but he thought such a case as this might be included 
 in the expressions used by Byles, J., in Great Western Baihoay Company v. 
 Blake,'' and his own decision in Bttxton v. North-Eastern Bailway Company.^ 
 Accordingly, judgment was entered against the defendants. 
 
 This case was appealed to the Court of Exchequer Chamber,' where the deci- 
 sion of the court below was affirmed. Kelly, C. B., who delivered the prin- 
 
 1 Barron v. Illinois etc. R. Co., 1 Biss. 453; * L. R. 5 Q. B. 228. 
 «. c. affirmed in 5 Wall. 90. • L. R. 3 Q. B. 549. 
 
 2 Toledo etc. R. Co. v. Rumbold, 40 lU. 143. » 7 Hurl. & N. 987, 994, ante, p. 403. 
 
 3 L. R. 5 Q. B. 226. 8 Supra. 
 
 < 20 & 21 Vict., c. 140. » L. R. 6 Q. B. 266.
 
 416 USE OF ANOTHER CARRIER'.S ROAD. 
 
 Notes. 
 
 cipal opinion, said: "I feel bound to add for myself, and on behalf of several 
 of the judges who have taken part iu the hearing of this case, that, indepen- 
 dently of the decision of Great Western Baihoay Company v. Blake,^ where a 
 railway company issues a ticket for a journey, in the course of which the train 
 which conveys the passenger has to pass along a portion of the line of a railway 
 belonging to another company (whether it be under running powers, or whether 
 it be under any particular contract for a participation in profits, or otherwise), 
 the contract between the railway company and the traveller to whom such ticket 
 is issued is, upon every principle of the law, a contract not only that they will 
 not themselves be guilty of any negligence, but that the passenger shall be car- 
 ried with due and reasonable care along the whole line, from one end of the 
 journey to the other." ^ 
 
 In this last case no reference was made by court or counsel to a decision in 
 the Court of Exchequer, nearly three years previous, by the learned Chief Baron 
 whose remarks we have just quoted. In this case,^ a train of the defendants, 
 while stationary upon their own track, was run into by another train. Several 
 railway companies had "running powers" over that part of the defendants' line 
 on which the collision occurred, and no evidence was given as to whether the 
 moving train belonged to, or was under the control of, the defendants. It was 
 held, in the absence of evidence to the contrary, that it must be presumed that 
 the train which caused the accident belonged to, or was under the control of, the 
 defendants. The language, however, of I^elly, C. B., is noteworthy as sug- 
 gesting a distinction upon which the case of Thomas v. Bhymney Baihoay Com- 
 pany * might have been otherwise decided. " Either the train which caused the 
 accident," said he, "belonged to the defendants, in which case, no doubt, they 
 would be liable, or else the train belonged to some other company running on 
 the defendants' railway under the authority or direction of the defendants. 
 Supposing the latter alternative to be the true one, it lay on the defendants to 
 show that the accident did not occur through any fault of theirs, but that it 
 arose from a violation of the arrangements made by them with the company to 
 which the train belonged, — a violation over which they had no control." ^ 
 Judgment was accordingly entered in this case for the plaintiff, but it seems 
 that it would have been otherwise had it been shown that " the accident did not 
 occur through any fault of theirs." 
 
 The suggestion thrown out in the last case seems to have been made the basis 
 of the decision of the Court of Exchequer in the latest case in the English 
 reports upon this subject," although no reference to this case appears iu the 
 report. A railway company had statutory authority' to ruu over a portion of 
 the defendants' line, paying a certain toll to the defendants. The signals at the 
 point of junction between the two lines were under the control of the defend- 
 ants. Owing to the servants of the first company negligently disobeying these 
 signals, a train of this company ran into a train of the defendants, in which the 
 plaintiff was, whereby he was injured. There was no negligence on the part of 
 
 1 7 Hurl. & N. 987; s. c. 31 L. J. (Exch.) 346, < L. R. 5 Q. B. 226 ; s. c. L. R. 6 Q. B. 266. 
 
 ante, p. 403. 6 l. R. 3 Exch. US. 
 
 s L. R. 6 Q. B. 273. e Wright v. Midland R. Co., L. R. 8 Exch. 
 
 3 Ayles V. South-Eastern R. Co., L. R. 3 137. 
 Exch. 146. 7 28 & 29 Vict., c. 267
 
 INJURIES TO PASSENGERS. 417 
 
 Parties to Action — Respondeat Superior. 
 
 any of the defendants' servants. In an action for the injuries sustained, brought 
 by the plaintiff against his carrier, it was held that he was not entitled to recover. 
 The decision in this case would seem to be obviously inconsistent with the con- 
 clusion reached by the Exchequer Chamber in the case of Thomas v. Bhymney 
 Bailway Company,^ and it is to be regretted that the case was not appealed to 
 that court. Bramwell, B., realizing the binding authority of this case, found 
 it necessary to obviate its effect by "distinguishing" it from the case at bar. 
 To do this it was necessary to presume the existence of a state of facts contrary 
 to what appeared in both reports of the case, viz., negligence on the part of the 
 defendants in that case. The case of Thomas v. Bhymney Bailway Company, 
 however, must be taken to be an accurate expression of the law of England 
 upon this subject, until its authority is denied by a court of equal or higher 
 dignity than the Exchequer Chamber. 
 
 § 4. Parties to Action — Respondeat Superior. — It is sometimes an interest- 
 ing question whether, in case of an injury from the negligence of other carriers 
 than his own, the passenger will have a right of action against such other 
 carrier. So far as cases of this kind are connected with the rule of imputed 
 negligence, they have been considered at length in a former chapter.^ But, 
 aside from all considerations of imputed negligence, has the passenger a remedy 
 against a carrier other than his own, whose negligence has caused him injury? 
 This question has been mooted on several occasions when it was not neces- 
 sary to decide it because the passenger had brought his action against his own 
 carrier.^ The objection to the action by the passenger against any carrier other 
 than his own, is the want of privity of contract between the parties in such a 
 case. However true such an objection might be in a case of mere non-feasance 
 on the part of such other carrier, it is obvious that the want of privity of contract 
 between the parties cannot avaU in an action on the case for a positive misfea- 
 sance.* 
 
 On principles unquestionably correct, it is held that if a railroad company 
 receive upon its track the cars of another company, placing them under the 
 control of its agents and servants, and drawing them by its locomotives over its 
 own road to their place of destination, it assumes towards the passengers com- 
 ing upon its road in such cars the relation of a common carrier of passengers, 
 and all the liabilities incident to that relation.^ So, where the o^vners of a line 
 
 1 L. R. 6 Q. B. 266; 8. c. L. R. 5 Q. B. 226. ^ Schopman v. Boston etc. R. Co., 9 Cush. 
 
 2 Ante, Chap. VII. 24; Clynier v. Central R. Co., 5 Blatchf. 317; 
 8 Martin, B., in Birkett v. Whitehaven Nashville etc. R. Co. v. Carroll, 6 Heisk. 347 
 
 Junction R. Co., 4 Hurl. &N. 730, 737; Cromp- The agreement between the companies, in 
 ton, J., in Great Western R. Co. v. Blake, 7 such a case, to allow the trains of each 
 Hurl. & N. 987, 994; Bramwell, B., in Wright company to run and be drawn over their 
 V. Midland R. Co., L. R. 8 E.\ch. 137, 143; respective tracks for the mutual interest 
 Bell, J., in Murch v. Concord R. Co., 29 X. H. and convenience of both companies, charges 
 9i 3.5. each of the companies with a duty toward--- 
 * See the illustration put by Bramwell, B., the servants of the other to keep their ti-acks 
 in Wriglit v. Midland R. Co., L. R. 8 Exch. in proper condition for this purpose, for a 
 137, 143. See also New Orleans etc. R. Co. v. breach of which an action may be main- 
 Bailey, 40 Miss. 395 ; Fletcher v. Boston etc. tained by such servants injured thereby. 
 R. Co., 1 Allen, 9; Illinois etc. R. Co. v. Kan- Nashville etc. R. Co. v. Carroll, supra; Saw- 
 ouse, 39 111. 272. yer v. Burlington etc. R. Co., 27 Vt. 370. 
 
 27
 
 418 USE OF ANOTHER CARRIER'S ROAD. 
 
 Notes. 
 
 of canal-boats engaged in the business of common carriers of passengers and 
 goods, chartered one of their boats to another transportation company for a 
 single trip, but retained charge of it and navigated it with tlieir own master and 
 crew, they were held liable to a passenger upon this trip for the loss of his 
 goods. ^ Stage-coach proprietors running a line of coaches between two points, 
 tlie route being divided between them into sections, the proprietor in charge of 
 each section furnishing his own carriages and horses, hiring drivers and paying 
 the expenses of his own section, each sharing in the profits of the entire line, 
 have been held jointly liable as copartners to a passenger for a breach of the 
 contract of carriage at any part of the route.' However, it has been held that 
 if a passenger purchase a ticket of railway carrier A., by whose servants the 
 train upon which he is riding is transferred to the line of caiTier B., and thence 
 by the servants of this carrier transferred to the line of carrier C, and while on 
 this last line, but in the charge of the servants of carrier B., a collision ensues, 
 attributable entirely to the fault of the sen-ants of carrier B., this carrier alone 
 can be held responsible for the injuries received by the passenger in such acci- 
 dent.* 
 
 A railroad company is also responsible for an injury to a person not a passen- 
 ger, occasioned by want of proper care and prudence on the part of its servants 
 in the management of a train which is under their exclusive care, direction, and 
 control, although the train belongs to another company.* 
 
 In this connection, it may be stated that a railroad company will be liable for 
 the acts of their lessees and others operating their road. The reason for this 
 is very plain, as stated by Kedfield, C. J. : " Unless we can hold the defendants 
 thus liable, they might put their road into the hands of corporations or individ- 
 uals of no responsibility. It was on this ground that the English courts denied 
 the legality of one road leasing itself to another, or to private persons, and the 
 consequent loss of security to the public, without consent of Parliament." ^ 
 
 1 Campbell v. Perkins, 8N. Y. 430. 7 Eng. Rail. Cas. 643; 21 L. J. (Ch.) 837; 12 
 
 2 Bostwick V. Champion, 11 Wend. 571, Eng. Law &Eq. 224; Winch v. Birkenhead etc. 
 581, per Xelson, J. (s. c. affirmed in 18 Wend. R. Co., 5 De G. & Sm. 562 ; s. c. 16 Jur. 1035 ; 13 
 175, 181, per Chancellor Walworth) ; Cole v. Eng. Law & Eq. 506. See also Lesher v. Wa- 
 Goodwin, 19 Wend. 251, 254. bash Nav. Co.. 14 111. 85; Hinde v. Wabash 
 
 3 Clymer v. Central R. Co., 5 Blatchf. 317. Kav. Co., 15 111. 72; Chicago etc. R. Co. v. 
 * Fletcher V. Boston etc. R. Co., 1 Allen, 9. McCarthy, 20 III. 385; Ohio etc. R. Co. v. 
 5 Nelson V. Vermont etc. R. Co., 26 Vt. 717, Dunbar, 20 111. 623; Illinois etc. R. Co. v. 
 
 721, citing Beman v. Rufiord, 1 Sim. (N. S.) Finnegau, 21 111. 646; Chicago etc. R. Co. v. 
 
 550; s. c. 15 Jur. 014; 20 L. J. (Ch.) 537; 6 Whipple, 22 111. 105; Wyman v. Penobscot 
 
 Eng. Law &Eq. 106; Great Northern R. Co. w. etc. R. Co., 46 Me. 162; 2 Thomp. on Neg., p. 
 
 Eastern Counties R. Co., 9 Hare, 306; ». c. 904.
 
 CHAPTEE XIII. 
 
 LIABILITY OF CARRIER FOR DAMAGE TO PASSENGER 
 THROUGH DEFAULT OF CONNECTING LINES. 
 
 Leading Cases: 1. Candee v. Pennsylvania Bailroad Company. — The carrier 
 who sells a ticket over connecting lines is held liable for 
 the default of companies owning such lines. 
 2. Quimhy v. Vanderbilt. — A modified rule — The liability to 
 be determined by evidence of the contract of transpor- 
 tation. 
 
 Notes: § l. Liability of the carrier who makes a contract for transpor- 
 tation over lines beyond his ovpn. 
 
 2. Another view — A thi'ough ticket a distinct contract of 
 
 each carrier. 
 
 3. Liability of the carrier on whose line the injury or loss 
 
 occurs. 
 
 4. Partnership of carriers. 
 
 6. Limitation of the carrier's liability for losses and injuries 
 occurring off his own line, by contract and notice. 
 
 1. THE CARRIEE WHO SELLS A TICKET OVER CONNECTING LINES 
 IS HELD LIABLE FOE THE DEFAULTS OF COMPANIES OWNING 
 SUCH LINES. 
 
 Candee v. Pennsylvania Railroad CoMPANr.* 
 Supreme Court of Wisconsin., 1867. 
 
 Hon. Luther S. Dixon, Chief Justice. 
 
 " Orsamus Cole, "I ^ ^ 
 ,, ^ T^ } Judges. 
 
 ** Jason Downer, J 
 
 The Rule of Liability for Bamag-e upon a Connecting' Line. — Where a railroad 
 company sells a through passenger-ticket by a specified route to some point out of the 
 State, over lines of road belonging to other companies in other States, the undertaking 
 of the first- named company is to transport the passenger and his baggage safely to such 
 place of destination, and it is lialile to him for any injury to his person or baggage 
 occurring on any of said connected lines of road in violation of such undertaking. 
 
 • Reported, 21 Wis. 582. 
 
 C419)
 
 420 INJURIES ON CONNECTING LINES. 
 
 Caudee v. Pennsylvania Kailroad Compauy. 
 
 Appeal from the Circuit Court for Milwaukee County. 
 
 Action for damages resulting from the opening of plaintiff's trunk 
 and the taking of goods therefrom while the same was being carried, 
 with the plaintiff herself, from Harrisburg, Pennsylvania, to the city of 
 New York. Defendant appealed from an order overruling a demurrer 
 to the complaint as not stating a cause of action, and also for a defect 
 of parties defendant in that the other railroad companies named in the 
 complaint were not made defendants. The substance of the complaint 
 is stated in the opinion. It appears therefrom, also, that defendant's 
 railroad extends from the city of Pittsburgh to the city of Philadelphia 
 in the State of Pennsylvania. 
 
 Byron Paine^ for appellant ; Alfred L. Cary, for respondent. 
 
 Cole, J. — Since this case comes up on a demurrer to the complaint, 
 it may be well to give the principal allegations of the complaint, to see 
 if they show a cause of action against the defendant. 
 
 It is alleged in the complaint that the several railroad companies 
 therein mentioned formed one continuous and connecting line of road 
 for the transportation of passengers and baggage from the city of Mil- 
 waukee to the city of New York ; that by virtue of an arrangement exist- 
 ing between these companies, each company issued and sold tickets for 
 the transportation of passengers and baggage, which were good over the 
 roads of the other companies ; that at the city of Harrisburg there is a 
 railroad branching off from the defendant's road and running to New 
 York by the way of AUentown, and commonly known as the "Allen- 
 town Line ; " that by reason of some arrangement existing between the 
 defendant and the operators of the "AUentown Line," tickets for the 
 transportation of passengers and baggage over the defendant's road 
 were equally good over the "AUentown Line." It is further alleged 
 that about the 22d of February, 1865, the plaintiff purchased from the 
 Chicago and Milwaukee Railway Company a coupon ticket issued by 
 that company, paying therefor the then established rate for one first- 
 class passage from Milwaukee to the city of New York ; that she had 
 the option of using her ticket over the "AUentown Line," instead of 
 going by the way of Philadelphia ; that she delivered her trunk to the 
 Chicago and Milwaukee Company at Milwaukee, receiving therefor a 
 through check for the trunk to the city of New York by way of the 
 "AUentown Line." It is further averred that when the plaintiff arrived 
 at the cit3' of Harrisburg on the defendant's road, where the "AUen- 
 town Line" branches off, she determined to go by the way of Philadel- 
 phia, instead of going over the "AUentown Line ; " that thereupon the 
 defendant company took up the check which the plaintiff had received
 
 THE CONTRACT OF TRANSPORTATION. 421 
 
 Supreme Court of Wisconsin. 
 
 for her trunk from the Chicago and Milwaukee Company, and gave in 
 exchange therefor a through check from Harrisburg to New York by 
 the way of Philadelphia. It is stated that at the time the trunk was 
 re-checked at Harrisburg, the plaintiff was informed and believed that 
 the same was in good order, but that when it arrived at New York, the 
 lock had been broken and the articles there mentioned had been taken 
 therefrom. It is not, however, alleged that the defendant company was 
 guilty of any negligence on its part in transporting the trunk over its 
 road, nor that the loss happened while the trunk was in the possession 
 of that company, or under the control of its agents and employees. 
 The question therefore arises, upon these facts, whether a cause of 
 action is stated against the defendant. 
 
 It appears to us that there is not enough set forth to show that the 
 defendant is liable for the value of the articles lost. According to our 
 understanding of the matter, the ticket and check given by the Chicago 
 and Milwaukee Railway Company imply a special understanding by that 
 company to safely transport and carry, or cause to be safely transported 
 and carried, the plaintiff and her baggage over the roads mentioned in 
 the complaint, from Milwaukee to the city of New York. This, we 
 think, must in legal contemplation be the nature and extent of the 
 contract entered into and assumed by that company when it sold the 
 plaintiff the through ticket, gave a through check for the trunk, and 
 received the fare for the entire route. This is the doctrine of the case 
 of Illinois Central Railroad Company v. Copeland,^ and we are dis- 
 posed to follow it as laying down a safe, sound, and reasonable rule on 
 this subject. In the case of Peet v. Chicago and North -Western Rail- 
 way Company ^ this court affirmed an analogous principle, by holding 
 that where a railroad company contracted as a carrier to transport 
 goods for the whole line, it became liable for any injury which might 
 happen to them beyond the terminus of its own road, while under the 
 control of other carriers. So, here, the Chicago and Milwaukee Com- 
 pany received the whole passage-money from Milwaukee to New York 
 city, — fare which covered the carriage of both the plaintiff and her 
 baggage safely to the latter city. It assumed to give a through check 
 for the trunk, and a through ticket which entitled the holder to a first- 
 class seat in the cars passing over the successive roads. It seems to 
 us, therefore, perfectly reasonable and proper to hold that company to 
 the full measure of liability assumed by it in its contract, and to say 
 that it is liable for losses happening beyond the line of its own road. 
 It was contended by the counsel for the appellant that the facts do not 
 
 1 24 Til. SS2. 2 lOMM". 118.
 
 4:22 INJURIES ON CONNECTING LINES. 
 
 Candee v. Penusylvania Railroad Company. 
 
 show even a contract on the part of the Chicago and Milwaukee Com- 
 pany to transport the plaintiff and her baggage for the entire route ; 
 that the tickets issued by it should rather be regarded as distinct tickets 
 for each road, sold by that company merely as agent for the other com- 
 panies ; and that each company is only Uable for such losses as happen 
 on its own road. But it is very obvious that this rule would at once 
 destroy all the convenience and benefits of the through-ticket system, 
 since it would impose upon the passenger the necessity of both looking 
 after and examining the condition of his baggage at the terminus of 
 each road ; otherwise it would be impossible for him to prove where the 
 loss, occurred. "We deem it a better rule to hold that the Chicago and 
 Milwaukee Company, by issuing the through ticket and check, con- 
 tracted to carry the plaintiff and her baggage the entire route. Had 
 the complaint alleged that the loss happened in consequence of the 
 negligence of the agents and employees of the defendant company, 
 and while the trunk was being transported over its road, then, perhaps, 
 the action might be maintained notwithstanding the undertaking of the 
 first company. But there is no such averment in the complaint. 
 
 It seems to have been supposed that the defendant company ren- 
 dered itself liable for the loss in this case because at Harrisburg it 
 took the baggage-check originally given by the Chicago and Milwaukee 
 Company and gave its own through check for the trunk to New York 
 by the way of Philadelphia. But this exchange was made simply in 
 accordance with the terms of the contract entered into at Milwaukee. 
 By that contract the plaintiff had the option of using her ticket over 
 the "Allentown Line," or to go by the way of Philadelphia. True, 
 her trunk had been checked by the way of Allentown, yet when she 
 reached Harrisburg she had the privilege of electing whether she would 
 pass over the "Allentown Line " or go the other route. She contracted 
 for this option in the first instance, and, therefore, surrendering the 
 check which she had received from the Chicago and Milwaukee Company, 
 and taking the defendant's check in exchange, was but carrying out 
 this undertaking and agreement. But we do not think the effect of 
 this transaction was to change the relation of the parties, by either 
 restricting or enlarging the liability of the defendant compau}', any 
 more than though the trunk had been originally checked by the Phila- 
 delphia route. 
 
 In anticipation that we might hold, upon the facts stated in the com- 
 plaint, that the defendant contracted to carry the plaintiff's trunk 
 beyond its own road to the city of New York, the counsel for the appel- 
 lant contends that the defendant had no power to make such a contract. 
 This objection, that a railroad company cannot incur liability beyond
 
 THE CONTRACT OF TRANSPORTATION. 423 
 
 Court of Appeals of New York. 
 
 its own route by an express contract, is overruled by what has been 
 already said in this opinion, as well as by what (if not expressly) is at 
 least by implication decided in Peet v. Chicago and North- Western 
 Railway Company.'^ It is unnecessary to enter upon any discussion 
 of this question at this time. The remarks already made dispose of 
 this appeal. My own opinion, however, is that the great weight of 
 authority, not only in England but in this country, holds that it is com- 
 petent for a railroad company to contract for the transportation of 
 passengers and goods beyond the terminus of its road, and I am dis- 
 posed to follow these decisions. But I leave the discussion here for 
 the present. 
 
 It follows from the views we have expressed, that the order of the 
 Circuit Court overruling the demurrer to the complaint must be reversed, 
 and the cause remanded for further proceedings according to law. 
 
 DowNER', J. — I concur in the opinion that the defendant corporation 
 is not liable unless the loss occurred while the baggage was in its 
 custody ; and as there is no averment in the complaint to that effect, 
 the demurrer should have been sustained. But I express no opinion as 
 to the liability of the corporation issuing the ticket, for losses on the 
 roads of the other corporations. 
 
 Order reversed and cause remanded. 
 
 2. A MODIFIED RULE — THIS LIABILITY TO BE DETERMINED BY 
 EVIDENCE OF THE CONTRACT OF TRANSPORTATION. 
 
 QUIMBY V. VaNDERBILT.* 
 
 Court of A2:)peals of New York, 1858. 
 
 Hon. Alexander S. Johnson, Chief Justice. 
 
 *' George F, Comstock, 1 
 
 " Samuel L. Selden, |- Judges. 
 
 " Hiram Denio, 
 
 " James J. Roosevelt, 
 
 " Ira Harris, 
 
 " Daniel Pratt, 
 
 " Theron R. Strong, 
 
 Justices of the Supreme Court 
 and ex-offlcio Judges of the 
 Court of Appe'als. 
 
 1. The Rule of Liability for Damag-es upon a Connectins: Line. —An owner of one of 
 several lines for the trausijortatiou of iKisseiigcrs, running in connection over different 
 
 • Reported, 17 N. Y. 306. 
 
 ' Supra.
 
 424 INJURIES ON CONTRACTING LINES. 
 
 Quimby v. Vanderbilt. 
 
 routes, may contract as principal for the conveyance of a passenger over the whole 
 route. Whether he does so contract is a matter to be determined by evidence. He 
 may, however, specially exempt himself from liability for the defaults of other carriers. 
 A contract by the first carrier for transportation over other lines, at his risk, may be 
 established by circumstances, notwithstanding the passenger receives tickets for the 
 different lines, signed by their separate agents. 
 
 a. What the Ticket is. — Passage-tickets are generally to be regarded as tokens rather 
 than contracts, and are not within the rule excluding parol evidence to vary a vrritten 
 agreement. 
 
 3. The Case stated. — The defendant was the owner of steamships sailing between New 
 York and the eastern port of the transit route across the Isthmus of Nicaragua. 
 He was also part-owner of steamships forming part of a line sailing between the 
 western port of the transit route and San Francisco. He was furnished by the cor- 
 poration owning and managing the transit route with passage -tickets for the con- 
 veyance of persons across the isthmus by their steamboats and carriages, which he 
 sold to passengers who embarked in his steamships from New York, and returned 
 those unsold. But the defendant owned no interest in this transit route, nor was he 
 an agent of it, or employed by it in any way. Upon the door of the office at New 
 York, occupied by one Allen, the defendant's agent, and which he frequently visited, 
 was posted an advertisement headed, '' V^anderbilt's line between New York and San 
 Francisco," and signed "Allen, agent," in which the route by the steamships on 
 both oceans and across the isthmus was described and commended. The agent at 
 that office sold to the plaintiff, for a gross sum, three tickets, which severally im- 
 ported that he was entitled to be carried to and across the isthmus, and thence upon 
 a particular vessel on her next voyage to San Francisco, and delivered to him a card, 
 signed by himself, describing the route, and stating that passengers are speedily con- 
 veyed across the isthmus by the Nicaragua transit. The plaintiff was, however, a long 
 time delayed upon this transit route, and failed to reach the Pacific terminus until 
 the vessel in which he had secured passage had sailed. Not being provided with other 
 means of transportation, he was obliged to return to New York, after long delay in a 
 sickly climate and consequent injury to his health. It was held that the foregoing 
 was sufficient to authorize a jury to find that the defendant contracted as principal 
 for the prompt conveyance of the plaintiff across the isthmus, and to charge him with 
 the damages resulting from detention. 
 
 The plaintiff sued the defendant in the New York Common Pleas, 
 and complained that shortly prior to the oth of March, 1852, the 
 defendant, being a carrier of passengers between New York and Cali- 
 fornia, undertook, in consideration of $250 paid by the plaintiff, to 
 carry him from New York to San Francisco by the route across the 
 Isthmus of Nicaragua, and that such passage, on the Pacific coast of 
 the continent, should be in the second cabin of the steamship Inde- 
 pendence, on her then next voyage to San Francisco ; that, pursuant to 
 the contract, the plaintiff was carried to the port of San Juan de Nic- 
 aragua, on the Atlantic side of the isthmus, but the defendant neglected 
 to provide for his conveyance across, on account of which he was 
 delayed a long time ; and when he finally arrived at San Juan del Sur, 
 on the Pacific side, the Independence had sailed, and the defendant 
 neglected to furnish any means for the continuance of the plaintiff's 
 journey ; whereby he was forced to return to New York at his- own 
 expense, after being exposed for a considerable time to the sickly cli- 
 mate of the isthmus, to the injury of his health, etc.
 
 iHE CONTKACT OF TKANSPORTATION. 425 
 
 Court of Appeals of New York. 
 
 The answer denied the contract stated, but admitted an agreement 
 by which the defendant, as the owner of a line of steamships between 
 New York and Nicaragua, undertook to carry the plaintiff to the latter 
 point; and it alleged that the plaintiff contracted with the " Accessory 
 Transit Company of Nicaragua" for his passage across the isthmus, 
 and with Robert & G. L. Schuyler, the owners of a steamship on the 
 Pacific coast, for his passage by water from the western side of the 
 isthmus to San Francisco ; that one Daniel B. Allen, acting separately 
 as the agent for those several lines, furnished the plaintiff with separate 
 tickets, at the price of $90 for the Atlantic passage, $35 for that across 
 the isthmus, and $125 for that on the Pacific line. The other material 
 allegations of the complaint were put in issue. 
 
 On the trial in the Common Pleas, the plaintiff proved that he went 
 to an office situated at Battery Place, New York, and inquired the price 
 of a through ticket to San Francisco, and whether there would be any 
 delay ; he was told that the price was $250, and that he would not be 
 delayed over two or three days ; that he thereupon made an agreement 
 with D. B. Allen, the person in charge of the office, who is a son-in- 
 law of the defendant, for his passage to San Francisco for $250 ; that 
 his name was taken down, and he was allowed to select his berth in the 
 steamships. Allen gave him a card and three tickets ; the card was in 
 these words : — 
 
 " Vanderbilt's Line for California, via Nicaragua. — Nearly 1,000 
 miles shorter than any other route. Composed of the new first-class 
 steamships Northern Light, Prometheus, Daniel Webster; connect- 
 ing by the Nicaragua transit route, having but twelve miles of land 
 carriage, by which passengers are speedily and comfortably conveyed 
 through a beautiful and healthful country, with the steamers North 
 America, Pacific, Independence, S. S. Lewis, one of which will leave 
 San Juan del Sur, the Pacific terminus of the transit route, with the 
 passengers for San Francisco without delay. 
 
 "N. B. — Travellers to the golden region are cautioned against the 
 misrepresentations of those in the service of rival lines. They are 
 solicited to call at the only office of this line, No. 9 Battery Place (up- 
 stairs), where full and correct information may be obtained, and where, 
 only, passages may be secured. D. B. Allen, Agent." 
 
 Two of the tickets were for the steamships, and both these were 
 headed " Vanderbilt's Line." One stated the plaintiff had paid his pas- 
 sage in the steamship Prometheus on her next voyage from New York 
 to San Juan de Nicaragua, and the other that he had paid his passage 
 in the steamship Independence on her next voyage from San Juan del
 
 426 INJURIES ON CONTKACTING LINES. 
 
 Quimby v. Vanderbilt. 
 
 Sur to San Francisco. They were signed, "D. B. Allen, agent, per J. 
 Rintoul." The other ticket stated that the plaintiff was entitled to a 
 passage across the Isthmus of Nicaragua by the line of the "Accessory 
 Transit Company," and it was signed "Isaac C. Lea, secretary." 
 
 The evidence to connect the defendant with the office where this 
 transaction took place, and its business, was as follows : He owned the 
 vessels on the Atlantic side, including the Prometheus, and D. B. Allen 
 was his agent to manage the business which was transacted by means of 
 them. Allen was also the agent for, and had the general control and 
 management of, the line through to San Francisco. There were two 
 apartments, the business office and the private office of Allen, in the 
 latter of which the defendant had a desk, and the usual entrance to the 
 inner or private office was through the other. The defendant was at 
 the office sometimes two or three times a day, but he was not there 
 every day. He was consulted by Allen about the affairs of the line, 
 and the witness, who was employed in the business upon the isthmus, 
 swore that the defendant was the chief manager of the line, and that 
 Allen was the principal agent. There was an advertisement published 
 by Allen in the daily papers in New York, and posted on a board at the 
 door of the office, and which was read by the plaintiff when he came to 
 engage his passage, as follows : — 
 
 " Vanderbilt's Nevt Line between New York and San Francisco — 
 The only Through Line via Nicaragua. — A number of days shorter 
 than any other route. Composed of the following first-class steamships 
 between New York and San Juan de Nicaragua : Prometheus, Captain 
 Churchill ; Daniel Webster, Captain Baldwin. And between San Juan 
 del Sur and San Francisco : North America, Captain Blethen ; Pacific, 
 Captain Jarv'is ; Independence, Captain Wakeman. 
 
 "These steamers are all new, were built expressly for this route, and 
 for speed, safety, and accommodations are unsurpassed. From San 
 Juan de Nicaragua to San Juan del Sur, passengers will be promptly 
 conveyed over the new transit route of the Nicaragua company, having 
 but twelve miles of land transportation, and at that point embark in one 
 of the above-named Pacific steamers for San Francisco. 
 
 "The great saving of distance by this route over others heretofore 
 established, and a speedy and comfortable transit between the two 
 oceans, through a beautiful and healthful country, offer inducements to 
 the traveUing pubUc equalled by no other line. 
 
 "D. B. Allen." 
 
 The Accessory Company is a corporation created bj^ the laws of the 
 State of Nicaragua, in Central America, but the corporators or stock-
 
 THE CONTRACT OF TRANSPORTATION. 427 
 
 Court of Appeals of New York. 
 
 holders are residents of the city of New York, and the defendant is one 
 of thera. It has a president and board of directors and other officers. 
 This company had no interest in the steamships, nor (as the secretary 
 swore) any thing to do with them. Its business was to transport pas- 
 sengers from one sea to the other. So far as it issued passage-tickets 
 in New York, they were, as a general thing, dehvered to the defendant 
 before the sailing of each steamship, he ordering such number as he 
 wanted ; and a day or two after the ship sailed he would pay for so 
 many as he had sold, at S35 each, and return the rest. If other per- 
 sons bought tickets of the company, which was not usual, they paid $40 
 each. 
 
 One W. H. Brown was the general owner of the steamship Inde- 
 pendence, but at the time of this transaction R. & G. L. Schuyler 
 had an absolute title in form to her, as mortgagees, and they were, as 
 R. Schuyler swore, mortgagees in possession. She was run as one of 
 the ships of the line from New York to California, under a contract 
 originally made with Brown, which was continued by the Schuylers after 
 they had acquired the title. They had nothing to do with her direction, 
 management, or expenses ; these matters being under the charge of 
 Allen, who was the agent of the Schuylers, and accounted to them for 
 the clear profits, after paying expenses and deducting a commission to 
 himself. Robert Schuyler swore that he wanted to withdraw this vessel 
 from the line, and had so told the defendant, and the defendant had 
 agreed that she might be withdrawn as soon as she could be spared. 
 The other ships on the Pacific side, viz., the North America and Pacific, 
 were owned, one-half of each by the defendant, and the other half by 
 other parties. Allen swore positively that the route across the isthmus 
 was not a part of the line, and that neither he (the witness) nor the defend- 
 ant had any thing to do with that part of the route, except to sell the 
 tickets of the Accessory Transit Company ; and Mr. Lea, the secretary 
 of the company, swore that Allen was not its agent. Allen, however, 
 admitted that when persons applied for passage to California by his line, 
 they were charged by him the gross sum of $250, and were not informed 
 as to the distribution of that sum among the proprietors of the several 
 routes. 
 
 It appeared that the plaintiff sailed from New York in the Prome- 
 theus on the 5th and arrived at Nicaragua on the 15th of March. No 
 means were provided for taking him across the isthmus, and he was 
 obliged to remain there more than a week, when he embarked in a 
 vessel going up the river. At Castillo Rapids he ascertained that the 
 Independence had sailed for San Francisco. When he arrived at the
 
 428 INJURIES ON CONTRACTING LINES. 
 
 Quimby v. Vanderbilt. 
 
 port on the Pacific side, there was no vessel to take him on ; and 
 although the company sent off two other steamers while he was there, 
 he was not permitted to embark on board either of them. He finally 
 found his way back to San Juan de Nicaragua, and from thence obtained 
 a passage to New York at his own expense. A steamer of the line, 
 running on the Pacific side, had been lost shortly before this time, and 
 this was the reason why the company could not take on all the passen- 
 gers arriving after the Independence had sailed. 
 
 The defendant's counsel maintained that there was not evidence 
 sufficient to be submitted to the jury of a contract by the defendant to 
 carry the plaintiff through to San Francisco, and requested that the 
 judge would charge to that effect; but he declined so to charge, and 
 submitted the question to the jury whether such a contract had been 
 proved. The defendant's counsel excepted. Verdict for the plaintiff 
 for $625. After an affirmance at General Term, the defendant appealed 
 here. Several other exceptions were taken on the trial in the Common 
 Pleas which werfe not relied on here. 
 
 C. A. Rapello, for the appellant; Richard Goodman, for the respon- 
 dent. 
 
 Denio, J. — The plaintiff relies upon an express contract, by which, 
 as he alleges, the defendant engaged to cause him to be carried from 
 New York to San Francisco ; and the single question of law involved 
 in the case is whether there was evidence of such a contract proper to 
 be submitted to the jury. If it should be conceded that there was no 
 such connection between the three lines of transportation as would 
 entitle the defendant, as the representative of the whole, to contract in 
 their behalf for the carriage of pei'sons and property the entire distance 
 from New York to California, it was quite competent for him to bind 
 himself to the plaintiff by an express contract not only to carry him 
 over his own proper portion of the line, but that the other transporta- 
 tion companies should successively take him up, upon his arrival at the 
 commencement of their respective routes, and carry him over the same 
 until he should arrive at his destination at San Francisco. The EngHsh 
 courts hold that where property is embarked upon a railroad or other 
 line of transportation, addressed to a place beyond the terminus of the 
 line, but which may be reached by other lines of carriage running in 
 connection with it, a contract arises between the first-mentioned com- 
 pany and the owner of the property that it shall be carried to its place 
 of destination ; ' and this court has determined that the agent of a rail- 
 
 1 Muschamp v. Lancaster etc. R. Co., 8 Mee. & W. 421 ; Watson v. Ambergate etc. R. Co., 
 3 Eng. Law & Eq. 497.
 
 THE CONTRACT OF TRANSPORTATION. 429 
 
 Court of Appeals of New York. 
 
 way company may bind his principals by a contract for carriage over 
 other roads running in connection with his own.^ The late Court of 
 Errors, in my opinion, very wisely limited the English rule above men- 
 tioned, by holding that evidence was admissible to show that by the 
 course of business a transportation line receiving property without any 
 express contract undertook only to carry it over its own line, and then 
 place it in the hands of the carriers over the next route ; and that it 
 discharged its obligation to the owners by delivering it to a responsible 
 company next in order in its passage to the place of destination. ^ All 
 the cases assume that the company to which the goods are delivered 
 ma}'- lawfully contract for the performance of the other lines running in 
 connection with its own, as well as for its proper route ; and there is no 
 difference in principle, in this respect, between contracts for the caf- 
 riage of persons and for the transportation of property. 
 
 But the defendant's counsel contends that the tickets which the plaintiff 
 received for the passage over the several routes are, in themselves, 
 written evidence of the bargains by which he engaged his passage, and 
 that he is precluded from contradicting them by parol testimony of an 
 entire contract with the defendant. We do not think this a sound posi- 
 tion. The tickets do not purport to be contracts. They are rather in 
 the nature of receipts for the separate portions of the passage-money ; 
 and their office is to serve as tokens to enable the persons having charge 
 of the vessels and carriages of the companies to recognize the bearers 
 as parties who were entitled to be received on board. They are quite 
 consistent with a more special bargain. Being the usual permits which 
 are issued for the guidance of the masters of the vessels and the con- 
 ductors of the carriages, they would necessarily be given to the pas- 
 senger to facilitate the transaction of business, whatever the nature of 
 his arrangement for passage may have been. Their character as mere 
 tokens is shown by the fact that the defendant received them in large 
 numbers from the Transit Company, not as an agent of that company 
 for the purpose of making bargains in its behalf with others, but to 
 furnish them to persons with whom he expected to deal on his own 
 account. In Hart v. Rensselaer and Saratoga Railroad Company, 
 just referred to, the plaintiff had separate tickets for each of the roads 
 over which she travelled, but she was permitted to recover against one 
 of the companies, though unable to show that her baggage was lost on 
 the route of that company. "We do not say that the receiving of sep- 
 
 1 Hart V. Rensselaer etc. R. Co., 8 N. Y. 37. « Vau Sautvoord v. St. John, 6 Hill, 157.
 
 430 INJURIES ON CONTK ACTING LINES. 
 
 Quimby v. Vanderbilt. 
 
 arate tickets for the different lines is not evidence of some weight upon 
 the question whether the contract was entire, but we hold that it does 
 not come within the rule which excludes parol testimony respecting a 
 contract which has been reduced to writing. 
 
 There was positive evidence of a verbal contract between the plaintiff 
 and Allen for carrying the former from New York to San Francisco. 
 The plaintiff applied at the office to obtain such passage, and he was 
 promised it for $250. The tickets were then given him to secure his 
 admission to the different vehicles of the line. In this, Allen professed 
 to act as the agent or clerk of some one. So far as the steamships on 
 the Atlantic were concerned, he was the agent of the defendant, and no 
 question is made but that he was authorized to bind the defendant thus 
 far. It is equally clear to my mind that he was authorized to bind him 
 by contracts for carrying passengers across the isthmus. The Transit 
 Company did not, as a general thing, sell any tickets to travellers, nor 
 did they make any contracts for passage except with the defendant. 
 To him they sold tickets, in the nature of permits for passage over their 
 route, in such quantities as he chose to purchase. It is proved that 
 neither he nor Allen were agents for the Transit Company. When he 
 dealt with a traveller, therefore, he bargained on his own account, and 
 not on behalf of the Transit Company. He might have charged more 
 or less than he paid that company. It was certainly possible for him to 
 dispose of one of these permits by an arrangement with the passenger, 
 so special that the latter should have no recourse to him ; but if he 
 engaged, in terms, that the purchaser should be carried across the isthmus, 
 and gave him one of the Transit Company's tickets to show his title to 
 be admitted on board their boats and carriages, he was the principal in 
 that contract, and must answer for its breach. He placed these tickets 
 in the hands of Allen, who was accustomed to deliver them to passen- 
 gers in connection with such contracts as the one he made with 
 the plaintiff. Allen admitted, on his examination, that he charged the 
 gross sum of $250 for the entire passage, without any specification of 
 the amount belonging to the separate branches of the line ; and there is 
 not the slightest evidence that on any occasion he sold the tickets to be 
 taken at the risk of the passenger, or in connection with any arrange- 
 ment except such as I have mentioned. The facts that the defendant 
 purchased the tickets of the Transit Compaay ; that he placed them in 
 the hands of his agent, Allen, for delivery to passengers ; that the latter 
 was accustomed to dispose of them in connection with contracts for pas- 
 sage over the entire route ; and that he transacted the business, in an
 
 THE CONTRACT OF TKANSPOETATION. 431 
 
 Liability of the Carrier issuing tlie Ticket. 
 
 oflQce occupied also by the defendant, and acted under his general 
 direction, were sufflcieut, prima facie, to charge the defendant as prin- 
 cipal in these contracts. 
 
 As the detention which prevented the plaintiff from reaching the 
 steamship Independence before she sailed occurred upon the isthmus, 
 the defendant is chargeable in this action when it is shown that such 
 detention was a breach of his contract, even though it should be held 
 that the plaintiff contracted with other parties for his passage upon the 
 Pacific coast. But I think there was suflflcient evidence to enable the 
 jury to find that the defendant was the principal in the contract which 
 Allen made with tlie plaintiff for the entire passage. The terms of the 
 card which was given to the plaintiff when he received his ticket, and of 
 the advertisement which was posted at the door of the office, which the 
 plaintiff read when he went to secure his passage, looked to contracts 
 for the whole distance. The defendant's connection with the office and 
 with Allen was sufficient, prima facie, to charge him with a knowledge of 
 the contents of these papers, and he is to be looked upon as their 
 author. Being known to both parties to the contract for passage, they 
 afford the means of ascertaining what that contract was, if it were 
 otherwise equivocal. If we add to this evidence the fact that the 
 defendant was the owner of a moiety of two of the steamships which 
 ran on the Pacific side, and that he was a party to the arrangement by 
 which the Independence, owned substantially by the Schuylers, was 
 employed in that navigation in connection with the other routes, a case 
 was made out which was not only suitable for the consideration of the 
 jury, but which in our opinion fully warranted the verdict which they 
 gave. 
 
 The judgment of the Court of Common Pleas should be affirmed. 
 
 All the judges concurring. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 1. Liability of the Carrier who makes a Contract for Transportation 
 over Lines beyond his own. — It is a very general custom in this country, as 
 well as in England, for carriers to enter into combinations by virtue of which one 
 of them can malie contracts for transportation over the lines of the others and 
 issue tickets which will be recognized by their servants. From this practice a 
 number of interesting questions have arisen, some of them very difhcult of solu- 
 tion. The weight of authority is, that if a carrier undertakes to carry a passen-
 
 4:32 INJURIES ON CONTRACTING LINES. 
 
 Notes. 
 
 ger and his baggage to a certain destination, lie is responsible for his safety and 
 that of his baggage, as carrier, throughout the whole distance, whether the fran- 
 chise and means of conveyance where the injury or loss occurs be owned or 
 controlled by him or by some other carrier. The terms of his contract are to 
 carry the passenger through, and the law holds him to a performance of it, not- 
 withstanding the intervention of another carrier as a means of effecting such a 
 performance.! In several well-considered cases it has been held that the issuing 
 of a ticket over other roads is in itself sufficient evidence that the carrier so 
 doing undertakes to carry the passenger and his baggage through to the terminus 
 indicated upon the ticket.^ A passage-ticket, however, is not a contract, but 
 rather a mere token to indicate that the passenger has paid his fare.^ Therefore, 
 where two tickets had been issued to a passenger from New York to San Fran- 
 cisco via the Isthmus of Panama, — one from New York to Chagres, and the other 
 from Panama to San Francisco, — parole evidence was held to be admissible to 
 show that there was one entire contract for carriage.* 
 
 In Tennessee, it is held that a carrier may bind himself by a contract for trans- 
 portation over a route composed of several lines, and make himself responsible 
 for safe carriage over the entire route ; but that this will not be considered to be 
 conclusively established from the sale of the ticket alone.* 
 
 It has been frequently urged in those instances where the carrier is a corpora- 
 tion, as is usually the case in this country at the present time, that a contract 
 for can'iage over a route beyond the terminus of the carrier's own line is ultra 
 vires. This view has not, however, met with much favor from the courts. In 
 California, it was held that railroad companies can make valid contracts for the 
 carriage of persons and baggage beyond their own lines, by land or by water, 
 and thus become liable for the conduct of carriers in no wise under their con- 
 trol.* Elsewhere such contracts have been held valid although the proposed 
 line of travel extends beyond the territorial limits of the State within which the 
 carrier making the contract is incorporated.' In a very well considered case 
 
 1 IllinoisetC.R. Co. ».Copeland, 24111. 337; s. c. 44 L. J. (Q. B.) 18; 31 L. T. (N. S.) 430; 23 
 
 Kent V. Midland R. Co., L. R. 10 Q. B. 1; s. c. Week. Rep. 25; Najac v. Boston etc. R. Co., 
 
 44 L. J. (Q. B.) 18; 31 L. T. (N. s.) 430; 23 7 Allen, 329; TVilson r. Chesapeake R. Co., 21 
 Week. Rep. 25; Najac v. Boston etc. R. Co., Gratt. 654; Great Western R. Co. v. Blake, 7 
 7 Allen, 329; Wilson v. Chesapeake etc. R. Hurl. & N. 986; s. c. 8 Jur. (N. S.) 1013; 31 L. 
 Co., 21 Gratt. 654; Ward v. Vanderbilt, 4 Abb. J. (Exch.) 346; ante, p. 403; Cary v. Cleve- 
 App. Dec. 521; Williams v. Vanderbilt, 28 N. land etc. R. Co., 29 Barb. 35; Hart v. Rens- 
 Y. 217; s.c. 29 Barb. 491; Quimby V. Vander- selaer etc. R. Co., 8 N. Y. 37; Weed v. 
 
 ^ bilt, ante, p. 423; Great Western R. Co. v. Saratoga etc. R. Co., 19 Wend. 534; Candee 
 
 Blake, 7 Hurl. & N. 986; s. c. 8 Jur. (N. s.) «. Pennsylvania R. Co., an<e, p. 419; Carter f. 
 
 1013; 31 L. J. (Exch.) 346; ante, p. 403; Hart Peck, 4 Sneed, 203. 
 V. Rensselaer etc. R. Co., 8 N. Y. 37; Weed' ^ Quimbyr. Vanderbilt, ante, p. 423. 
 
 w. Saratoga etc. R. Co., 19 Wend. 534; Can- < Van Buskirkr. Roberts, 31 N. Y. 661. See 
 
 dee V. Pennsylvania R. Co., ante, p. 419; also Williams v. Vanderbilt, 23 N. Y. 217; s. 
 
 Carter v. Peck, 4 Sneed, 203; Croft v. Balti- c. 29 Barb. 491; Quimby v. Vanderbilt, 17 K. 
 
 more etc. R. Co., 1 McArthur, 492; Mj-tton v. Y. 306, ante, p. 423; Ward v. Vanderbilt, 4 
 
 Midland R. Co., 4 Hurl. & N. 614 ; s. c. 28 L. J. Abb. App. Dec. 521. 
 (Exch.) 385 ; Burnell v. New York etc. R. Co., s Nashville etc. R. Co. v. Sprayberry, 9 
 
 45 N. Y. 184 ; Buxton v. North-Eastern U. Co., Heisk. 852 ; s. c. 1 Cent. L. J. 541. 
 
 L. R. 3 Q. B. 549. e Wheeler v. San Francisco etc. R. Co., 31 
 
 s Illinois etc. R. Oo. v. Copeland, 24 111. Cal. 46. 
 .<?37; Kentv. Midland R. Co., L. R. lOQ. B. 1; ? cary v. Cleveland etc. R. Co., 29 Barb.
 
 THE CONTRACT OF TRANSPORTATION. 433 
 
 Through Ticket a Coutract of each Carrier. 
 
 before the Court of Appeals of New York, Comstock, C. J., said that the plea 
 of ultra vires, according to its just meaning, imports, not that the corporation 
 could not, and did not in fact, make the unauthorized contract, but that it ought 
 not to have made it. Such a defence, therefore, necessarily rests upon the 
 violation of trust or duty toward the shareholders, and is not to be entertained 
 where its allowance will do a greater wrong to Innocent third parties. The 
 acquiescence of the shareholders in the abuse will prevent the interposition of 
 such a plea.' • 
 
 The fact that at some point on the passenger's journey his baggage is re- 
 checked will not operate as a new contract for its carriage from that point. It 
 must be considered to have been done in pursuance of the original undertaking.'^ 
 Nor can a carrier making such a contract for carriage beyond his own line free 
 himself from liability by showing an agreement between the various carriers 
 whose lines constitute the route, that each shall be responsible for losses and 
 injuries occurring on his part of the line.^ 
 
 Where the contract for carriage on the route is entire, the liability of the 
 carrier making it is in nowise affected by the knowledge of the plaintiff of the 
 distinct ownership of the connecting lines.* 
 
 § 2, Anotlaer View — A Through Ticket a Distinct Contract of each Carrier. — 
 The foregoing view, however, has not universally prevailed. There is very re- 
 spectable authority for the rule that a through ticket over several distinct lines 
 of passenger transportation, issued in the form of several tickets on one piece of 
 paper, and recognized by the proprietors of each line, is to be regarded as a dis- 
 tinct ticket for each line; that the rights of the passenger purchasing such a 
 ticket, and the liabilities of the proprietors of the several lines recognizing its 
 validity, are the same as if the purchase had been made at the ticket-offlce of each 
 line respectively.^ " The theory that the company selling the ticket shall be held, 
 from this alone, to have actually contracted to carry the passengers over roads 
 besides its own, and that the owners of the other roads are but the agents of the 
 first to carry out the contract, seems to us to be an arbitrary assumption, a 
 sort of legal fiction, and contrary, in some cases at least, to the truth of the 
 case. Assuming that in fact the different lines of road are separate and dis- 
 tinct, and owned and controlled by different companies with different agents 
 and officers, and that there is no contract or privity between them in regard to 
 carrying passengers except the arrangement to sell through tickets, and that 
 these facts appear in proof, shall the fact that the first company, with the author- 
 ity of the others, issues and sells the tickets, be held of itself to establish exactly 
 what may be contrary to the truth, that the other companies are but the agents 
 and servants of the first? "^ A similar rule obtains in Connecticut. The de- 
 
 35; Candee v. Pennsylvania R. Co., ante, p. ♦ Carter v. Peck, 4 Sneed, 203. 
 
 419; Nashville etc. R. Co. v. Sprayijerry, 9 ^ Knight v. Portland etc. K. Co., 56 Me. 
 
 Heisk. 852; «. c. 1 Cent. L. J. 541. 235; Furstenheim v. Memphis etc. R. Co., 9 
 
 1 Bissell V.Michigan etc. R. Co., 22 N. Y. Heisk. 238; Nashville etc. R. Co. v. Spray- 
 
 2.58 ; Buffett v. Troy etc. R. Co., 40 N. Y. 168. berry, 9 Ileisk. 85-2 ; s. c. 1 Cent. L. J. 541 ; 
 
 * Candee v. Pennsylvania R. Co., 21 Wis. Hood v. New York etc. R. Co., 22 Conn. 1. 
 
 5S2, mite, p. 419. See also Wilson v. Chesa- " McFarland, J., in Nashville etc. R. Co. 
 
 peake etc. R. Co., 21 Gratt. 054. v. Sprayberry, 9 Heisk. 852, 858; s. c. 1 Cent. 
 
 ' Wilson V. Chesapeake etc. R. Co., 21 L. J. 541. 
 Gratt. 654. 
 
 28
 
 434 INJURIES ON CONNECTING LINES. 
 
 Notes. 
 
 fendant, a railroad company, sold a through ticket from New Haven to CoUins- 
 ville. Their road extended no further than Farmington, which was five miles 
 distant from Collinsville. From Farmington to Collinsville, passengers were 
 carried by a line of stages, in one of which the injury complained of happened. 
 The railroad company advertised that the stages connected with the trains at 
 Farmington. The whole fare from New Haven to Collinsville was generally 
 paid to the railroad company, and the conductor's through checks were honored 
 by the stage line. The stage mauagei's, too, sold tickets through from Collins- 
 ville to New Haven, Avhich were honored on the defendant's train and taken up. 
 Once a mouth, accounts were settled between the two lines. The court held this 
 insufficient evidence of an undertaking on the part of the defendant to carry the 
 plaintiff through to Collinsville.' A case in Michigan tends to support the fore- 
 going, though not exactly in point. There, a ticket from Buffalo to Detroit, in 
 two parts, — one from Buffalo to Stratford in Canada, and the other from Strat- 
 ford to Detroit, — printed on the same piece of paper, in coupon form, was held 
 to form two separate and distinct contracts and vouchers for separate journeys. 
 Therefore a delay at Stratford of two months, before using the second ticket, was 
 held not to affect the validity of such ticket.^ 
 
 3. Liability of the Carrier on •whose Line the Injury or Loss occurs. — 
 Whatever may be the correct rule concerning the liability of the company selling 
 a through ticket over several lines of carriers, there would seem, on principle 
 to be no doubt about the responsibility of one of the intervening carriers for an 
 injury received upon its line, caused by the negligence of its servants.' The 
 contract created between a railroad company and a purchaser of one of its 
 tickets, and the rights and liabilities of the parties to such contract, are the 
 same, whether the ticket is purchased at one of the company's stations, or at a 
 station of a contiguous railroad, or of any other authorized agent of the com- 
 pany.* 
 
 With regard to baggage, there can be no doubt that it is necessary for the 
 plaintiff to show that it came into the hands of the particular carrier whom he 
 wishes to charge with a liability for its loss.^ What is sufficient evidence to 
 show that the baggage came into the possession of the carrier must to a very 
 great extent depend upon the facts of each case. Proof that a passenger riding 
 on a through ticket from New York City to Junction City, Kansas, by way of the 
 Hannibal and St. Joseph Railroad and the Kansas Pacific Railway, delivered at 
 Kansas City to the baggage-master of the Kansas Pacific Railway Company, 
 who was the agent of both railroad companies, certain checks of the Hannibal 
 and St. Joseph Railroad for baggage belonging to him, with the understanding 
 that it should be forwarded from Kansas City to Junction City by the Kansas 
 Pacific Railway, was considered some evidence to show that the Kansas Pacific 
 
 1 Hood V. New York etc. R. Co., 22 * Schopman v. Boston etc. R. Co., 9 Gush 
 Conn. 1. 24; Chicago etc. R. Co. v. Fahey, 52 111. 81: 
 
 - Brooke v. Grand Trunk R. Co., 15 Mich. Glasco v. New York etc. R. Co., 36 Barb. 557. 
 
 332. See also Kesaler v. New York etc. R. * Kessler v. New York etc. R. Co., 61 N 
 
 Co., 61 N. Y. 538 ; s. c. 7 Lans. 62. Y. 538; s. c. 7 Lans. 62 ; McCormick v. Hud 
 
 2 Johnson v. West Chester etc. R. Co., 70 son River R. Co., 4 E. D. Smith, 181; Chi 
 Pa. St. 357; Schopman v. Boston etc. R. Co., cago etc. R. Co. v. Fahey, 52 111. 81; Fairfax 
 9 Cush. 24. V. New York etc. R. Co., 5 Jones & Sp. 516.
 
 THE CONTRACT OF TRANSPORTATION. 435 
 
 Liability of on whose Line the Loss occurs. 
 
 Eailway Company received the baggage, and therefore competent evidence to go 
 to the jury for that purpose, witli other evidence in the case tending to prove 
 the same fact.^ In another case, the check of the company, and a delivery of a 
 part of the baggage at the end of their line, were considered sufficient to show a 
 delivery of all the baggage into their possession.* 
 
 It is not sufficient to show that the baggage came into the carrier's possession. 
 It must appear that he received it under a contract for carriage, made either 
 directly with the passenger or through the first carrier on the line, in the shape 
 of a through ticket. Thus, a passenger purchased a ticket at Montreal from the 
 agent of the Grand Trunk Eailway Company, which on its face purported to 
 carry him to New York by the connecting lines of the Grand Trunk Railway, 
 Plattsburg and Montreal Railroad, Champlain Transportation Company, and the 
 People's Line of Steamboats. At Montreal his baggage was checked by checks 
 which did not purport to be checks of the New York Central and Hudson River 
 Railroad Company, the defendant. He came to New York via the People's Line 
 of Steamboats, and not by the defendant's line of railway. At Troy, the carrier 
 who had brought him from Whitehall delivered his baggage to the train baggage- 
 master of the defendant, which company brought his baggage to New York. A 
 passenger-agent of the Grand Trunk Railway Company testified that his com- 
 pany was in the habit of checking baggage through to New York under some 
 arrangement with the connecting lines; that the baggage was checked by a 
 check which indicated that it was issued by neither of the lines between New 
 York and Albany, which were the defendant's and the People's Line of Steam- 
 boats ; that it might come by either of these lines, and that the passenger might 
 come by one of these lines and his baggage by the other. The court held that 
 this evidence was insufficient to establish an arrangement between the Grand 
 Trunk Railway Company and the defendant that the latter should carry the 
 baggage of a passenger who had not paid his passage on the line of the defend- 
 ant ; that there was no contract between the defendant and the passenger, either 
 directly or through the Grand Trunk Railway Company, for the carriage of his 
 baggage, and that they were not liable as carriers for its loss.' 
 
 The English rule is, that where the contract is made for through transportation 
 by one of several connecting lines of carriers, a subsequent carrier is not 
 responsible to the passenger for the loss of his baggage, notwithstanding it 
 appeared that it came into his possession, for the reason that thei'e is but one 
 contract, and that with the first carrier who sold the through ticket ; there is no 
 privity between the passenger and the subsequent carrier in whose hands the 
 baggage was lost.* But it is settled by very late cases that a subsequent carrier 
 is responsible for a personal injury to a passenger upon its train under such cir- 
 cumstances. It is a case of pure tort. A company having invited or pertnitted 
 a person to travel on their train, they are bound to make reasonable provision 
 for his safety.* 
 
 1 Kansas Pacific E. Co. v. Montellc, 10 tion to the same effect in Kessler v. New 
 Kan. 119. York etc. It. Co., 61 N. Y. 588; s. c. 7 Lane. 
 
 2 McCormick v. Hudson River E. Co., 4 62. Compare Candee v. Pennsylvania R. Co., 
 E. T>. Smith, 181. ante, p. 419. 
 
 •■= Fairfax v. New York etc. R. Co., 5 Jones " P.erringer r. Great Kastern K. Co., 4 C. 
 
 & Sp. .51(5. P. Div. 1C3; Foulkcs v. Metropolitan District 
 
 * Mytton V. Miilland R. Co., 4 Hurl. & N. R. Co., 4 C. P. Div. 207. 
 616: 8.C.28L..J. (Kxcli.') 38i. Seeanintima-
 
 436 INJURIES ON CONTRACTING LINES. 
 
 Notes. 
 
 Of course, one of a line of carriers into whose hands the baggage of a passen- 
 ger has come may relieve himself of responsibility by showing that he delivered 
 it to the next carrier over whose line it was intended to go. Evidence of de- 
 fendant's clerk, that, in the usual course of business on the road, if a trunk was 
 not delivered to the next carrier, it was always brought back to the defendant's 
 office ; that he knew of no such occurrence during the month in which the loss 
 occurred; that the baggage-agents on board the defendant's boats made lists of 
 the through baggage delivered by them to the connecting line, and that these lists 
 were not preserved, was held insufficient to show a delivery to the next carrier. 
 Any presumption that could arise from these facts, would be repelled by one 
 equally as strong in favor of the succeeding carrier.^ 
 
 § 4. Partnership of Carriers. — In some instances, the running arrangements 
 of carriers have amounted in effect to partnerships, and each has therefore been 
 held liable for the torts as well as contracts of the others in the conduct of their 
 common business. Thus, A. and B. were jointly interested in the profits of a 
 common stage-line, but by a private agreement between themselves each under- 
 took the conducting and management of the coach with his own driver and horses 
 for specified distances. In an action against one of them for a negligent injury, 
 the court held that, notwithstanding this private agi'eement, they were jointly 
 liable for the conduct of their drivers throughout the whole distance, and that 
 an averment that the injury was occasioned by the negligence of A., against 
 whom the action was brought, was supported in such case by proof that the 
 driver was actually employed by B. in conducting the coach for his own stage. ^ 
 But in order to produce a common liability against each and all the carriers for 
 injuries occurring anywhere along the line of transportation, the arrangement 
 must be really a partnership, with the incident of community of profit or loss. 
 The ordinary running arrangements of connecting lines, where several compa- 
 nies constitute a through line, and fare received for through tickets is accounted 
 for by the first company to the otlier companies according to a tariff established 
 by each company for itself (there being no division of profits or losses), is not 
 in any sense a partnership involving joint liability.^ 
 
 Nor will the appointment of a common agent at each end of the route, to 
 receive the fare and give through tickets, constitute them partners as to the pas- 
 sengers who purchase through tickets, so as to render each one liable for losses 
 occurring on any portion of the line.* In case of a loss or injury, the company 
 selling the through ticket may be sued on its contract for through carriage.^ 
 Though this is not undisputed, as seen above.^ And the company upon whose 
 line the loss or injury occurs may be sued for breach of the contract implied in 
 the reception of the passenger or baggage for carriage.' 
 
 In New York, in a case against two carriers who formed a connecting line, to 
 enforce a joint liability for an injury to a passenger, and where the defendants 
 admitted that their relations to each other were fixed by written contracts, but 
 
 1 Baltimore Steam Packet Co. v. Smith, 23 ^ Croft v. Baltimore etc. R. Co., 1 MoAr- 
 
 Md. 402. thur, 492. 
 
 « Waland v. Elkins, 1 Stark. 272. See also * Ellsworth v. Tartt, 26 Ala. 733. 
 
 Bost-wick V. Champion, 11 Wend. 571 (s. c. ' Supra, %\. ^ Supra, i 2. 
 
 affirmed in IS Wend. 175) ; Cole v. Goodwin, i Croft v. Baltimore etc. R. Co., 1 MoAr- 
 
 19 Wend, 251. See also Railroad Co. v. Har- thur, 492. 
 ris, 12 WaU. 65.
 
 THE CONTRACT OF TRANSPORTATION. 437 
 
 Contracts limiting such Liability. 
 
 refused to produce the papers, it was held that " every inference warranted by 
 the facts should be indulged against them," and a verdict against them was sus- 
 tained.i 
 
 § 5. Limitation of the Carrier's Liability lor Losses and Injuries occurring 
 off his own Line, by Contract and Notice. — Contracts limiting the carrier's 
 liability and the effect of " carrier's notices " are more fully discussed in other 
 parts of this work,^ and do not properly belong to this subject any further than 
 as affected by the peculiar relations growing out of arrangements for through 
 transportation. The liability for losses and injuries on other connecting lines is 
 the consequence of the carrier's contract for through carriage, and there is no 
 reason why he may not stipulate, at the time of selling the ticket, that each carrier 
 must be liable for its own defaults.' Where the ticket sold by a railroad com- 
 pany to a point on a connecting line contained a printed statement that in the 
 sale of this ticket the company acted as agent only, for roads beyond the ter- 
 minus of their road, and assumed no responsibility therefor, the court held that 
 the company was not liable for a loss of baggage occurring upon the connecting 
 line.* But in Virginia, the defendant must show that such a notice or stipulation 
 in the ticket had been brought home to the plaintiff's knowledge before the jour- 
 ney began, — that he read it before the cars started. ^ The burden of proof is 
 upon the defendant to show that the baggage passed out of his custody into that 
 of the next to whom it was to be delivered, before the loss occurred.^ 
 
 1 Wylde V. Northern R. Co., 53 N. Y. 156. Gratt. 65-t. Contra, Burke v. South-Eastem 
 
 2 Ante, Chap. XI. ; post, Chap. XVI. R. Co., 5 C. P. Div. 1; s. c. 28 Week. Rep. 306; 
 
 3 Quimby ^;. Vanderbilt. an<e, p. 423. 20 Alb. L. J. 498. Compare Hendersons;. 
 
 * Pennsylvania R. Co. v. Schwarzenberger, Stevenson, L. R. 2 H. L. (Sc. App.) 470. 
 
 45 Pa. St. 208. « Kent v. Midland R. Co., L. R. 10 Q. B. 1 ; 
 
 * Wilson V. Chesapeake etc. R. Co., 21 s. c. 44 L. J. (Q. B.) 18; 23 Week. Rep. 25.
 
 CHAPTEE XIV. 
 
 STREET-RAILROAD COMPANIES. 
 
 Lbadeetq Cases: 
 
 Notes: 
 
 1. Wilton V. Middlesex Bailroad Company. — Scope of employ- 
 
 ment of driver — Gratuitous passenger. 
 
 2. Burns v. Bellefontaine Bailroad Company. — Contributory 
 
 negligence of passenger — Riding upon front platform. 
 
 § 1. Street-railroad companies are " carriers of passengers." 
 
 2. Ejecting person from street car while in motion. 
 
 3. Duty of the conductor towards passengers alighting. 
 
 4. Duty of passenger to notify conductor or driver of inten- 
 
 tion to alight. 
 6. Getting on street car from the side upon which there is 
 another track. 
 
 6. Passenger standing on platform of car. 
 
 7. Passenger getting on or off car by way of front platform. 
 
 8. Passenger projecting arm from window. 
 
 9. When the relation of carrier and passenger ceases. 
 
 10. Street car obstructing crossing — Right of pedestrian to 
 cross platform. 
 
 1. scope of employment of driver of street car — gratu- 
 itous passenger. 
 
 Wilton v. Middlesex Railroad Company.* 
 
 Supreme Judicial Court of Massachusetts, 1871. 
 
 Hon. Reuben A. Chapman, Chief Justice. 
 •' Horace Gray, Jr., " 
 *♦ John Wells, 
 " James D. Colt, - Judges. 
 •* Seth Ames, 
 " Marcus Morton, 
 
 Scope of Emplo3nnent of Driver— Gratuitous Passenger — Riding on Front Plat- 
 form.— If a person riding with due care on the platform of the horse -car of a street 
 
 * Reported, 107 Mass. 108. 
 
 (438)
 
 STREET-RAILROAD COMPANIES. 439 
 
 Scope of Driver's Employment — Gratuitous Passengers. 
 
 railroad company, not as a passenger for hire, but by invitation of the driver, and with- 
 out collusion with him to defraud the corporation, is injured through his negligence in 
 driving the car, the corporation is liable. 
 
 Tort against a street-railroad corporation for personal injuries alleged 
 to have been received by the plaintiff through the negligence of the 
 driver of one of the defendants' horse-cars. 
 
 At the trial in this court the plaintiff offered to prove " that on July 
 16, 1868, at which time she was nine years of age,^ she went out about 
 seven o'clock in the evening to walk ; that she was in company with 
 four or five other girls on the Chailestown bridge, and near the draw, 
 and one of the defendants' cars came along very slowly ; that there 
 were no passengers on the platform, and the driver beckoned the girls 
 to get on, and they accordingly got on the platform while the car was 
 going slowly ; that the driver then struck his horses, and they started 
 on a fast trot; that the plaintiff had one foot on the step, and by 
 reason of the sudden start, lost her balance ; that she called to the 
 driver to stop, but the car kept on, and she fell so that one of the 
 wheels passed over her arm, and she was obliged to have it amputated ; 
 and that she used due care, and the driver was careless." It was 
 admitted that the plaintiff was not a passenger for hire, and that the 
 driver had no authority to take the girls upon the car and carry them, 
 unless such authority was to be implied by the fact of his employment 
 by the defendants as a driver. Upon the plaintiff's offer of proof, the 
 case was reserved by the Chief Justice for the consideration of the full 
 court: if the plaintiff was entitled to recover thereon, the case to stand 
 for trial ; otherwise, judgment to be given for the defendants. 
 
 E. H. Derby, for the plaintiff ; L. M. Child, for the defendants. 
 
 Morton, J. — The plaintiff was injured while riding upon one of the 
 defendants' cars. At the trial, she offered to prove that she was in the 
 exercise of due care, and that the driver of the car was careless. For 
 the purposes of this hearing, therefore, we are to assume that she was 
 injured by the negligence of a servant of the defendants in the course 
 of his employment, and that her own want of care did not contribute 
 to the injury. It follows that she can maintain this action ; unless we 
 sustain the position taken by the defendants, that she was unlawfully 
 upon the car, and therefore not entitled to recover. 
 
 The facts which the plaintiff offered to prove, bearing upon this 
 
 1 [In a subsequent action by the father of twelve years and seven months. See Wil- 
 this plaintiff for loss of services, she stated ton v. Middlesex K. Co., 125 Mass. 130, 131.— 
 that her age at the time of the accident was Kd.]
 
 440 STREET- RAILROAD COMPANIES. 
 
 Wilton V. Middlesex Eailroad Company. 
 
 question, are as follows : The plaintiff, a girl of nine years of age, was 
 walking with several other girls upon the Charlestown bridge, about 
 seven o'clock in the evening, in July. One of the defendants' ears 
 came along very slowly, and the driver beckoned to the girls to get on. 
 They thereupon got upon the front platform. It was admitted thai 
 the plaintiff was not a passenger for hire, and that the driver had no 
 authority to take the girls upon the car and carr}'^ them, unless such 
 authority is to be implied by the fact of his employment as driver. 
 
 Upon these facts, it is clear that it would be competent for the jury 
 to find that the beckoning by the driver was intended and understood 
 as an invitation to the plaintiff to get upon the car and ride. In accept- 
 ing this invitation and getting upon the car, we think she was not a 
 trespasser, there being no evidence of collusion between her and the 
 driver to defraud the corporation. 
 
 A master is bound by the acts of his servant in the course of his 
 employment. They are deemed to be the acts of the master. ^ The 
 driver of a horse-car is an agent of the corporation, having charge, in 
 part, of the car. If, in violation of his instructions, he permits per- 
 sons to ride without pay, he is guilty of a breach of his duty as a 
 servant. Such an act is not one outside of his duties, but is an act 
 within the general scope of his agency, for which he is responsible to 
 his master. In the case at bar, the invitation to the plaintiff to ride 
 was an act within the general scope of the driver's employment, and if 
 she accepted it innocently, she was not a trespasser. It is immaterial 
 that the driver was acting contrary to his instructions. 
 
 It follows that the plaintiff, being lawfully upon the car, though she 
 was a passenger without hire, is entitled to recover if she proves that 
 she was using due care at the time of the injury, and that she was 
 injured by the negligence of the driver.^ 
 
 In the present aspect of the case, we are not called upon to consider 
 to what extent the defendants might be held liable if it were shown that 
 the plaintiff was unlawfully riding upon the car.^ 
 
 Case to stand for trial. 
 
 ' Eamsden v. Boston etc. R. Co , 104 Mass. by this accident, the principles of the fore- 
 
 117, and cases cited. going case were affirmed, and judgment in 
 
 2 Phila. etc. R. Co. v. Derby, 14 How. 468, the previous suit held to be no bar to the 
 iSS; s.c. ante, p. 31. action. Wilton v. Middlesex R. Co., 12.> 
 
 3 [In a subsequent action by the father of Mass. 130.— Ed.] 
 the plaintiff for loss of services occasioned
 
 CONTRIBUTORY NEGLIGENCE OF THE PASSENGER. 441 
 
 Supreme Court of Missouri. 
 
 2. contributory negligence of passenger — riding upon 
 pront platform. 
 
 Burns v. Bellefontaine Railway Company.* 
 
 Supreme Court of Missouri, 1872. 
 
 Hon. David Wagner, 1 
 " Philemon Bliss, I Judges. 
 " "Wash. Adams, J 
 
 Fassengrer riding: npon Front Platform. —The fact that a street-railway passenger 
 voluntarily puts himself on the front platform of the car, when there is room inside, 
 does not constitute negligence, as a matter of law, on the part of such passenger. 
 
 Appeal fi'om St. Louis Circuit Court. 
 
 Krum & Patrick, for appellant ; Bakewell & Farish, for respondent. 
 
 Adajis, J., delivered the opinion of the court. — The plaintiff recovered 
 a judgment for damages growing out of injuries to plaintiff in getting 
 off the front part of one of its cars. There seems to have been some 
 defect in the brakes, so that in going down a steep grade the cars could 
 not be stopped by the use of the brakes, and the plaintiff was seriously 
 injured in trying to save himself by getting off the car. He was on the 
 car as a free passenger, and when he entered the car he passed through 
 it and stood with the driver, without any objection from him, on the front 
 platform. When the horses commenced running, the driver jumped off 
 to stop them, and the plaintiff took the reins and endeavored to stop 
 the car by using the brake, but to no purpose. 
 
 Instructions were asked and given in behalf of both parties, on the 
 question of negligence and defect in the car, and contributive negli- 
 gence of plaintiff. These instructions, to my mind, presented the case 
 fairly to the juiy. 
 
 The only material question is whether, as a matter of law, the fact 
 that the plaintiff voluntarily put himself on the front platform, when 
 there was room inside the car, absolved the defendant from liability. 
 This question is presented by the refused instructions asked by the 
 defendant. The question of negligence is for a jury to decide, from 
 the facts and circumstances detailed in evidence. Whether the front 
 platform was a more dangerous place than inside the car, is not a ques- 
 tion of law, but of fact for a jury. If it be conceded that the front 
 platform was more dangerous, yet the plaintiff was there without any 
 
 * Reported, 50 Mo. 139.
 
 442 STREET-RAILROAD COMPANIES. 
 
 Notes. 
 
 objection by the defendant or its agent. The defendant had the right 
 to carry passengers on the platform, and passengers might stand there 
 by the consent of defendant's agent. In this case there was no objec- 
 tion at all by defendant's agent to the plaintiff standing on the platform. 
 In the case of McKeon v. Citizens^ Railway Company ^^ a special act 
 of the Legislature, entitled "An act concerning street railroads in the 
 city of St. Louis," approved January 16, 1860, was set up as a defence 
 in the answer, and relied on as exempting the railroad company from 
 liabiUty. This act provided that " said railroad companies shall not be 
 liable for injuries occasioned by the getting off or on the cars at the 
 front or forward end of the car." Under this act, if the party com- 
 plaining received the injury by getting on or off at the front end, then, 
 as a matter of law, under this act he was prevented from recovering. 
 This railway company is not one of the street railroads referred to in 
 that act, and is not protected by its provisions. The defendant does 
 not plead exemption by virtue of this act, or any other act of the Legis- 
 lature, but looks to the common law as affording the same protection ; 
 and asks the court to declare, as a matter of law, that contributive 
 negligence on the part of the plaintiff is to be presumed from his get- 
 ting off at the front end of the car. This is not the law as applicable 
 to this case. 
 
 Let the judgment be affirmed. 
 
 NOTES. 
 
 §1. street-Railroad Companies are "Carriers of Passengers." — Street' 
 railroad companies are "carriers of passengers," within tlie meaning of a 
 statute which provides that "a carrier of passengers is bound to extraordinary 
 diligence on behalf of himself anu his agents to protect the lives and persons of 
 his passengers," etc.^ Whether or not, under the statute, they should provide 
 a conductor or other servant in addition to the driver on each of their cars, to 
 protect their passengers, is a question of fact for the jury.* By a statute in 
 New York, owners of carriages running upon the highway for the conveyance of 
 passengers are liable for all injuries done by a driver while driving such carriage, 
 whether the act was wilful or negligent.* And by the same act a " carriage," as 
 there used, is declared to include stage-coaches, wagons, carts, sleighs, sleds, and 
 every other carriage or vehicle used for the transportation of persons and goods, 
 
 » 42 Mo. 79. 2 Code Ga. 1873, § 2067. Carey, 56 Ind. 396; Hestonville etc. R. Co. v. 
 
 8 Holly t;. Atlanta Street R. Co., 7 Report- Connell, 6 \V. X. C. 5U; s. c. S Cent. L. J. 
 
 er, 460. See Chicago City R. Co. v. Munford, 306, and observation in 5 South. L. Rev. 
 
 21 Alb. L. J. 214; Citizens* Street R. Co. v. 704. * Rev. Stat. X. Y. (2d ed.) p. 696, § 6.
 
 LIABILITIES OF AS PUBLIC CARRIERS. 443 
 
 Ejecting Passengers — Passengers alighting. 
 
 or either.i And while it is ver}^ doubtful whether a street car is within the 
 meaning of the act, certainly a conductor of such a car is not the driver of a 
 carriage as contemplated by the statute.* 
 
 § 2. Ejecting' Person from Street Car while in Motion. — In removing a 
 person from a street car for non-pajanent of fare, or because he is so intoxicated 
 as to be offensive to passengers, it is a question of fact for the jury, and not of 
 law for the court, whether it is due care, and a proper exercise of the right, to do 
 so while the car is in motion.^ The speed of a horse-car may be so far slackened 
 that a person might at a suitable place be ejected with safety; and it cannot be 
 said as a matter of law that it would be wrongful to eject a person, who might 
 otherwise lawfully be ejected, merely because the car was in motion.* 
 
 § 3. Duty of the Conductor towards Passengers alighting. — "Passenger- 
 carriers bind themselves to carry safely those whom they take into their coaches, 
 as far as human care and foresight will go, — that is, to the utmost care and dili- 
 gence of very cautious persons;"* hence, a conductor of a street car does not 
 come up to the requirements of his position who permits his car to stop in 
 front of a rapidly advancing hook-and-ladder truck, and puts off a passenger 
 just in time to come in contact with the vehicle.^ It is also the duty of a person 
 in charge of a street car to stop a reasonable length of time to enable a passen- 
 ger to safely alight.' Therefore, where it was shown that the plaintiff, a lady, 
 with her child about two years of age, were passengers on the defendants' car; 
 that in alighting she placed one foot upon the ground, when the conductor 
 started the car; that her hoop-skirt caught on the head of a projecting nail 
 upon the platform, and she was thrown down and injured, it was held that the 
 facts as they thus appeared made out a case of negligence upon the part of the 
 company, and it was not error in the trial court to refuse to dismiss the com- 
 plaint.^ 
 
 § 4. Duty of Passenger to notify Conductor or Driver of Intention to 
 Alight. — If a passenger on a street car attempts to alight without notifying 
 either the conductor or driver, and if they neither know nor have the means of 
 knowing that the passenger intends to get off, or is in the act of getting off, no 
 liability attaches to the fact that the passenger was injured in getting off, by 
 reason of the car not "^ stopping, or suddenly starting rapidly at the time the pas- 
 
 • /d., § 7. will become annoying or offensive to other 
 
 = Isaacs V. Third Avenue R. Co.,47N. T. passengers therein, although he has not 
 
 122. committed any act of annoyance or offence. 
 
 " Lovett i;. Salem etc. R. Co., 9 Allen, 557; Vinton v. Middlesex R. Co., 11 Allen, 304, 
 
 Murphy v. Union R. Co., 118 Mass. 228; ante.p.G. 
 
 Healey v. City etc. R. Co., 28 Ohio St. 23; < Murphy v. Union R. Co., 118 Mass. 228. 
 
 Sanford v. Eighth Avenue R. Co., 23 N. Y. ^ Maverick v. Eighth Avenue R. Co., 36 N. 
 
 343; Higgins v. VVatervliet Turnpike Co., 46 Y. 378, 381. 
 
 N. Y. 23. The conductor of a street car « Ibid. 
 
 may exclude or expel therefrom a person ' Crissey v. Hestonville etc. R. Co., 75 Pa. 
 
 who, by reason of intoxiciUion or otherwise, St. 83. 
 
 is in such a condition as to render it rea- 8 Poulin v. Rroadway etc. R. Co., 61 N. Y. 
 
 sonably certain that by act or speech he 621 ;8.c. (aflirming) 2 Jones & Sp. 297.
 
 444 STREET-RAILROAD COMPANIES. 
 
 Notes. 
 
 senger was making Ms exit.^ However, a notice to the driver by the passenger 
 of his desire to alight is sufficient ; and tlie fact that the passenger did not notify 
 the conductor will not in itself charge him with contributory negligence, where 
 the passenger was injured in getting off a car by reason of its not stopping.- 
 But a negligent or wilful refusal of a conductor or driver to stop the car, aftei- 
 being requested, will not of itself justify a passenger in getting off the front 
 platform of a car while it is in motion.^ 
 
 There is no rule of law which requires that a passenger on a street car, after 
 he has notified those in charge of it of his desire to alight, and there are indica- 
 tions that the car is about to stop, should remain in his seat until the car 
 has fully stopped. If, after notifying the conductor or driver, he sees that his> 
 notice has been understood, he may prepare to leave ; and unless he is negligent 
 in alighting, he may recover for the injuries he receives by reason of being 
 thrown off the car by its suddenly starting forward without notice to him.* 
 
 § 5. Getting on Street Car from the Side upon which there is another 
 Track. — It has been held to be negligence, as a matter of law, for a person to 
 attempt to get upon a street car from the space between two tracks, on seeing 
 another car approaching, some two hundred feet distant, upon the parallel ti'ack, 
 by which such person was knocked down and injured.^ In another very similar 
 case, it was left to the jury to determine whether, under the circumstances, there 
 was such negligence on the part of the plaintiff as to preclude his recovery.^ 
 
 § 6. Passenger standing on Platform of Car. — It is the duty of a street- 
 railroad company to cai-ry passengers with safety; and if injury to a passenger 
 results from the carelessness of its servants in the management of its car, or 
 from a defective brake, or from an overloaded car, or from all combined, the 
 company will be liable.' The fact that a passenger stands upon the front plat- 
 form of a car, although there may be room inside, does not per se constitute 
 contributory negligence, where he is injured by the fault of the company's ser- 
 vants ; ® certainly not if the car is so crowded that he cannot get inside, and 
 his fare is accepted by the conductor while he is upon the platform.'* But it 
 has been held that standing upon the steps of the frout platform of a street car 
 (it appearing that the person would have escaped injury if he had been inside 
 the car) when an accident takes place, in the absence of explanation, is sufficient 
 to make out a, prima facie case of negligence against the person injured thereby^ 
 and the burden is upon him to rebut the presumption. But if while riding in 
 
 1 Nichols V. Middlesex R. Co., 106 Mass. 6 Dale v. Brooklyn City etc. B. Co., 1 Hun, 
 463; Cram v. Metropolitan R. Co., 112 Mass. 146. See also Milk v. Middlesex R. Co., 99 
 38. Mass. 167. 
 
 2 Mnlhado v. Brooklyn CityR. Co., SON. Y ? Chicago City R. Co. v. Young, 63 lU. 3'2S. 
 370. s Burns v. Bellefontaine R. Co., 50 Mo. 139, 
 
 3 Cram v. Metropolitan R. Co., 112 Mass. ante, p. 441; Maguire v. Middlesex R. Co., 
 38. 115 Mass. 239. 
 
 * Nichols V. Sixth Avenue R. Co., 38 N. Y. o Augusta etc. R. Co. v. Reuz, 55 Ga. 126; 
 
 131 ; Chicago City R. Co. v. Munford, 21 Alb. Hadencamp v. Second Avenue R. Co., 1 
 
 L- J- 214. Sweeny, 49j; Meesel v. Lynn etc. R. Co., 8 
 
 5 Halpin v. Third Avenue R. Co., 8 Jones Allen, 234; Iluelseukamp v. Citizens' R. Co., 
 
 & Sp. 175. 37 Mo. 537 ; «. c. 34 Mo. 45.
 
 LIABILITIES OF AS TUliLlC CAKKlEliS. 445 
 
 Passenger getting on and off by Front Platform. 
 
 this position lie is called upon for his fare, and it is received by the conductor, It 
 will authorize the jury to And that an implied assurance was given to him that it 
 was a suitable place to ride, and therefore that he is not guilty of contributory 
 negligence.^ And although it is not negligence pei- se to stand upon the platform 
 of a car, yet, where a passenger stood upon the very edge of the platform with- 
 out holding on to any thing, and with knowledge of the bad condition of the 
 street and track, caused by the accumulation of snow and ice, and maintained 
 that position after an opportunity had been given him to exchange it for a place 
 of comparative safety, until thrown off by a jerk of the car, occasioned by the 
 bad condition of the street and track, it was held that he was guilty of negligence 
 which contributed to the injury, and it was no excuse that the persons in charge 
 of the car knew that he was in an unsafe position and did not drive him there- 
 from, when the danger was equally well known to him.^ The fact that a passen- 
 ger on a street car was standing on the rear platform, with his hand on the rail- 
 ing, when his hand was injured by the defendant's dray as it passed the rear of 
 the street car, is not, as a matter of law, such negligence as contributes to the 
 injury.' 
 
 § 7. Passenger getting on or off Car by way of the Front Platform. — 
 It cannot, as a matter of law, be regarded as negligence for a passenger to alight 
 from the front end of a street car while it is at rest, after he has requested the 
 driver to hold his brake for that purpose and has received assurance that he will 
 do so.* It is usually a question of fact for the jury whether those in charge of a 
 car are negligent in allowing a passenger to stand upon, or get on or off, the 
 front platform, and in not sooner stopping the car.^ But to allow very j'oung 
 children to get on, or stand upon, the front platform while the car is in motion, is 
 negligence upon the part of the company's employees, as a matter of law.^ 
 
 It has been held in Maryland that a regulation of a street-railroad company 
 prohibiting passengers from getting on or off at the front end of a street car 
 is a reasonable rule and that knowingly to violate it, without the compulsion of 
 some existing necessity is conclusive evidence of negligence of the passenger ; 
 so that, should he sustain an injury in consequence, he will have no right of 
 action against the company, although the driver of the car may also have been 
 concurrently negligent ; that the circumstance that a driver or conductor may 
 have given permission thus to use the front platform is immaterial, for the com- 
 psCny cannot be bound by the act of their servant in attempting to dispense with 
 a known and positive regulation.' 
 
 » Clark V. Eighth Avenue R. Co., 36 N. Y. 45 Conn. 284; Phila. etc. R. Co. *. Hassard, 
 
 135 (affii-ming s. c. 32 Barb. 657). 75 Pa. St. 367; East Saginaw City K. Co. v. 
 
 » Ward V. Central etc. R. Co., 42 How. Pr. Bohn, 27 Mich. 503; Wilton v. Middlesex U. 
 
 289. Co., 107 Mass. 108; s. c. 125 Mass. 130, ante, 
 
 3 Seigel V. Eisen, 41 Cal. 109. p. 438; Day v. Brooklyn etc. R. Co., 12 Hun. 
 
 * Mulhado V. Brooklyn City R. Co., 30 N. 435. See Smith v. Hestonville etc. R. Co. 
 Y. 370. (Sup. Ct. Pa. 1880), 10 Cent. L. J. 272, and 
 
 ' Crissey v. Hestonville etc. R. Co., 75 Pa. note. 
 St. 83; Maher v. Central Park etc. R. Co., 67 ' Baltimore City etc. R. Co. v. Wilkinson, 
 
 N. Y. 52 ; (affirming s. c. 7 Jones & Sp. 1.55). 30 Md. 224. But see Wilton v. Middlesex R. 
 
 • Pittsburgh etc. R. Co. v. Caldwell, 74 Pa. Co., an<e, p. 438; Dunn v. Grand Trunk R. Co., 
 St. 421; Brennan v. Fair Haven etc. R. Co., ante, p. 328.
 
 446 STREET-RAILKOAD COMPANIES. 
 
 Notes. 
 
 Where an act in relation to street railroads provided that " said railroad com- 
 panies shall not be liable for injuries occasioned by the getting off or on the cars 
 at the front or forward end of the car," * it was held that the effect of this stat- 
 ute was such that where an injury to a passenger was occasioned by his getting 
 off a car at the front platform, it must be presumed, as a matter of law, that the 
 negligence of the passenger himself contributed to produce the accident and 
 injury; yet if the injury were occasioned to a passenger who had got off the 
 front platform and had fallen in front of the wheel, by the driver's negligence in 
 either intentionally starting the horses or in carelessly allowing them to stai't 
 forward while the passenger was in that position, it would be an independent 
 act of negligence, for which the company might be liable.^ 
 
 § 8. Passenger projecting Arm from Window. — While there is a difference 
 of opinion as to whether a passenger upon a steam-railway train is guilty of 
 negligence as a matter of law in ridmg \vith his arm projecting from the car 
 window,^ this has never been asserted of a passenger upon a street railway in a 
 similar position. It is evident that there is not the same reason for the rule. 
 "The cars of a horse-railway have not the same right to the use of the track 
 over which they travel, do not run at the same speed, are not attended with the 
 same danger, and are not so difficult to check quickly and suddenly, as those of 
 an ordinary railroad corporation." * Therefore each case must stand upon its 
 o^vn facts ; and what is or is not ordinary prudence as to the position which 
 one assumes when sitting at an open window of a street car running upon rails, 
 and drawn by horses under the charge of a driver, is not to be determined by 
 any arbitrary rule.* 
 
 §9. When the Relation of Carrier and Passenger ceases. — The general 
 principle that the duty of a passenger-carrier towards its passengers is entirely 
 distinct from its duty towards persons who are not," or who have ceased to be, 
 passengers,' applies equally to street cars as it does to other conveyances. After 
 a passenger has got off from a street car, and is walking upon the highway, the 
 relation of carrier and passenger has ceased, and towards such person the rail- 
 way company is under the obligation of using only such care as is to be exercised 
 between two persons lawfully using the highway; therefore, where a person 
 was knocked down and injured in the changing of the horses from one end of 
 the car to the other, at the terminus of the line, — she having got off from the 
 forward end of the car in violation of the company's regulations, — this act, 
 which, had she been considered a passenger at the time of the accident, might 
 have been conclusive evidence of negligence, upon the theory that she was 
 not a passenger was considered as not even proximately contributing to the 
 accident.^ 
 
 1 Mo. Sess. Acts 1859-60, p. 518, § 9. • Brand v. Troy etc. R. Co., 8 Barb. 368. 
 
 5 McKeon v. Citizens' R. Co., 42 Mo. 79. ' Imhoff v. Chicago etc. R. Co., 22 Wis. 
 
 8 Ante, p. 257. 681. 
 
 * Lynam v. Union R. Co., 114 Mass. 83, 88. s piatt v. Forty-second Street etc. R. Co., 
 
 * Miller v. St. Louis R. Co., 5 Mo. App. 471. 2 Hun, 124 ; s. c. 4 Thomp. & C. 406.
 
 LIABILITIES OF AS PUBLIC CARRIERS. 447 
 
 Injuries to Pedestrians. 
 
 § 10. Street Car obstructing Crossing — Right of Pedestrian to cross 
 Platform. — Where a street car is stopped so as to obstruct tlie passage of a 
 pedestrian desiring to cross the street, it is not a trespass or wrongful act on 
 his part to step upon and pass over the platform of the car in order to avoid 
 the obstruction, and if the driver of the car should seize and throve off a person 
 passing over the platform of a car thus obstructing the crossing, the railroad 
 company would be liable in an action for damages for injuries sustained thereby.^ 
 
 1 Shea V. Sixth Avenue E. Co., 62 N. Y.180.
 
 CHAPTEE XY. 
 
 CARRIERS OF PASSENGERS BY WATER. 
 
 Leading Cases: l. Benett v. Peninsular and Oriental Steamboat Company. — 
 Duty of carriers of passengers beyond the seas to receive 
 and carry. 
 2. Chamberlain V. Chandler. — Jurisdiction of courts of admi- 
 ralty over torts committed upon passengers — Conduct 
 of tlie master amounting to a tort. 
 
 Notes: § 1. Botli owner and master are common carriers, although 
 passengers are carried to a foreign country. 
 
 2. Who is a passenger. 
 
 3. When master of vessel may refuse to receive passengers. 
 i. When a passenger may be expelled from a vessel. 
 
 5. Duty of the carrier to convey passenger to the port to 
 
 which he has contracted to carry him. 
 
 6. Payment of passage-money — Recovery back. 
 
 7. Construction of contracts of carriage — Jurisdiction of 
 
 admiralty courts. 
 
 8. Duty of the carrier as to accommodation and ti'eatment of 
 
 passengers. 
 
 9. Authority of master of vessel over passenger. 
 
 10. Right of passengers to salvage. 
 
 11. Baggage of passengers by water. 
 
 12. Injuries to passengers getting on or off a vessel. 
 
 13. Rights of passengers inter se to berths on steamboats. 
 
 14. Duty of the carrier as affected by quarantine. 
 
 15. Limitation of liability — English Merchants' Shipping Act. 
 
 16. Parties to action in case of injury to passengers from col- 
 
 lision of vessels. 
 
 17. U. S. statutes affecting carriers of passengers by water. 
 
 1. duty of carriers of passengers beyond the seas to 
 receive and carry. 
 
 Benett v. Peninsular and Oriental Steamboat Company.* 
 
 English Court of Common Pleas, 1848. 
 
 Obligation to receive and carry. — It is the duty of owners and masters of vessels who 
 hold themselves out as carriers of passengers to receive all proper persons who choose 
 
 • Reported, 6 0. B. 775. See also s. c. 16 C. B. 23. The case was heard before WUde, 0. J., 
 Ooltman, Maule, Cress well, and Williams, JJ. 
 
 (448)
 
 CARRIERS OF PASSENGERS BY WATER. 449 
 
 Obligation to Eeceive and Carry. 
 
 to apply, and are ready and willing to pay for transportation. This obligation attaches 
 , equally to carriers of passengers by water from one place to another in the same coun- 
 
 try, and carriers of passengers beyond the seas. 
 
 Uase against the Peninsular and Oriental Steamboat Company for 
 refusing to carr^^ the plaintiff, as a passenger for hire, from South- 
 ampton to Gibraltar. 
 
 The declaration stated that on, etc., the defendants were possessed of 
 a certain steam-vessel called the Montrose, then lying at Southampton 
 and about to sail for a place beyond the seas, — to wit, Gibraltar^ in 
 Spain, — for the carriage of passengers from Southampton to Gibraltar ; 
 that the defendants were then common carriers of passengers for hire, 
 in and by the said steam-vessel, from Southampton to Gibraltar ; that 
 the plaintiff was then desirous of becoming a passenger in and on board 
 of the said steam-vessel from Southampton to Gibraltar, and then, at 
 a reasonable and proper time in that behalf, tendered himself to the 
 defendants at Southampton aforesaid, to be carried by them as such 
 passenger in and on board the said steam-vessel from Southampton to 
 Gibraltar, and then requested the defendants to receive him as such 
 passenger in and on board the said steam-vessel, to be carried, and to 
 carry him, from Southampton to Gibraltar ; that the plaintiff was then 
 ready and willing to pay to the defendants all reasonable passage- 
 money, hire, and reward for being carried by them as such passenger 
 from Southampton to Gibraltar, of which the defendants then hail 
 notice ; and that, although the defendants then had sufficient room and 
 accommodation in and on board the said steam-vessel to receive the 
 plaintiff in and on board the same as such passenger, and to carry him 
 as such passenger from Southampton to Gibraltar, yet the defendants 
 disregarded their duty in that behalf, and did not nor would receive 
 the plaintiff as such passenger in and on board the said steam-vessel, 
 or carry the plaintiff therein from Southampton to Gibraltar, but wholly 
 neglected and refused so to do; and then caused the said steam- vessel 
 to sail, and the same did then sail, from Southampton to Gibraltar with- 
 out the plaintiff, etc. 
 
 Third plea, that the defendants were not common carriers of pas- 
 sengers for hire, moclo et forma, etc. 
 
 The cause was tried before Wilde, C. J., at the Sittings in London 
 after Michaelmas Term, 1847. It appeared that the defendants were 
 the proprietors of certain steam-vessels, one of which was advertised 
 bj^ circulars issued b}' the defendants to sail every ten days from South- 
 ampton for Corunna, Vigo, Oporto, Lisbon, Cadiz, and Gibraltar, — 
 the circulars giving the times of starling, and the terms upon which 
 
 29
 
 450 CARRIERS OF PASSENGERS BY WATER. 
 
 Benett v. Peuinsular and Oriental Steamboat Company. 
 
 passengers were to be convej^ed to those places respectively, and goods 
 also, if there was room for them ; that the plaintiff went to South- 
 ampton on the 27th of February, 1847, for the purpose of taking his 
 jmssage by one of the defendants' vessels, called the Montrose ; but 
 that, in consequence of some communication which had been made to 
 the defendants by the Portuguese consul, their agent refused to allow 
 him to take a passage, although it was admitted that there was plenty 
 of room. 
 
 On the part of the defendants, it was submitted that the third issue 
 ought to be found for them, for that the common-law liability of car- 
 riers did not extend to carriers of passengers or to extra-territorial 
 carriers ; and that the company's circulai-s imported a limited and not 
 a general undertaking to carry passengers. 
 
 The Lord Chief Justice left it to the jury to say whether or not the 
 evidence satisfied them that the defendants carried on the business of 
 common carriers for hire. 
 
 The jury found in the affirmative, and a verdict was accordingly 
 entered for the plaintiff on that issue, with leave to the defendants to 
 move to enter the verdict thereon for them if the court should be of 
 opinion that this was not the fair legal inference from the evidence. 
 
 The Attorney -General now moved accordingly. — Carriers of passen- 
 gers are not common carriers for hire within the custom of the realm^ 
 so as to be liable to the performance of the duty laid in this declaration. 
 And if they are, the custom does not bind extra-territorial carriers. 
 This is not an action for refusing to perform a contract, express or 
 implied ; but it is an action that is founded upon a common-law duty. 
 A carrier of goods is an insurer, with this single qualification : that he 
 is not responsible for the act of God or of the king's enemies. In an 
 action against a common carrier, negligence need not be alleged. But, 
 in all the books, the liability of the carrier is restricted to the carriage 
 of goods. The law upon this subject is correctly and conveniently 
 brought together in Story on Bailments. In § 495, the learned author 
 says: "A common carrier has been defined to be one who undertakes, 
 for hire or reward, to transport the goods of such as choose to employ 
 him, from place to place." § 496. " Common carriers are generally of 
 two descriptions: 1. Carriers by land; 2. Carriers by water. Of the 
 former description are the proprietors of stage-wagons and stage- 
 coaches which ply between different places, and carry goods for hire. 
 So truckmen, teamsters, cartmen, and porters, who undertake to cany 
 goods for hire, as a common employment, from one part of a town or 
 city to another. Of the latter description are the owners and masters
 
 OBLIGATION TO RECEIVE AND CARRY. 451 
 
 English Court of Common Pleas. 
 
 of ships and steamboats engaged in the transportation of goods for 
 persons generally, for hire. So are lightermen, hoymen, barge-owners, 
 ferrymen, canal-boatmen, and others employed in like manner." § 498. 
 " But the proprietors of stage-coaches whose employment is solely to 
 carry passengers (such as hackney-coachmen) are not deemed common 
 carriers. They are not responsible for mere accidents happening to the 
 persons of passengers, but only for want of that due care which is required 
 of bailees for hire ordinarily.^ But if they are accustomed to carry the 
 baggage of passengers, although they receive no specific compensation 
 therefor, and receive simply their fare for the passage of the travellers, yet 
 they are responsible (even if not as common carriers) at least for due and 
 reasonable care of such baggage ; since the passengers are thus induced 
 to travel in the coach, and the custody of the baggage may be properly 
 deemed, as in the case of an innkeeper, an accessory to the principal 
 conti'act." § 499. "And, in modern times, it seems not quite settled, 
 whether, as to passengers' baggage, without any distinct compensation, 
 the coach proprietors are not liable as common carriers. The language 
 of those cases which are supposed to intimate a liability of this sort may 
 perhaps be explicable upon the ground of the ordinary responsibility for 
 ordinary care. In a late case,^ Chief Justice Best seems to have placed 
 the responsibility of coach proprietors carrying passengers and their bag- 
 gage, upon the ordinary footing of common carriers as to their baggage. 
 And Mr. BelP deduces this as the true modern doctrine on the subject." 
 § 500. " But if the proprietors of a stage-coach for passengers carry 
 goods also for hire, they are, in respect to such goods, to be deemed 
 common carriers. The like reasoning applies to packet-ships and steam- 
 boats which ply between different ports, and are accustomed to carry 
 merchandise as well as passengers." § 501. "When it is said that the 
 owners and masters of ships are deemed common carriers, it is to be under- 
 stood of such ships as are employed as general ships, or for the transporta- 
 tion of merchandise for persons in general ; such as vessels emploj^ed in 
 the coasting trade, or in a foreign trade, for all persons offering goods for 
 the port of destination. But if the owner of a ship employs it on his own 
 account generally, or if he lets the tonnage, with a small exception, to 
 a single person, and then, for the accommodation of a particular indi- 
 vidual, he takes goods on board for freight (not receiving tliem for per- 
 sons in general), he will not be deemed a common carrier, but a mere 
 private carrier,; for he does not hold himself out as engaged in a public 
 
 1 Citing Aston v. Heaven, 2 Esp. 533; Pul. 417. And eee Ross v. Hill, 2 C. B. 
 
 Christie v. Griggs, 2 Camp. 79; Dudley v. 877. 
 
 S'liitli, 1 Camp. 167; Wliite v. Boulton, 2 Brooke «. Pickwick, 4 Bing. 218; 12 J. B. 
 
 lV.:k3, 81; Robinson r. Dunmore, 2 Bos. & Moo. 447. ^ 1 BeH's Coram. 467,468, 475. .
 
 452 CARRIERS OF PASSENGERS BY WATER. 
 
 Benett v. Peninsular and Oriental Steamboat Company. 
 
 business or emplo^inent. " The learned author draws a pointed distinc- 
 tion between the liability of a carrier as to goods and as to passengers 
 and their baggage. If the party holds himself out as a carrier of goods 
 as well as of passengers, he is subject to all the liabilities that attacli 
 upon a carrier by the custom, but it is otherwise if he holds himsel f 
 out as a carrier of passengers only. Here it was proved that the carry- 
 ing of goods was not the primary object and business of the company, 
 but that they only professed to carry goods if they had room for them. 
 Dr. Story thus comments on the case of Dale v. Hall: ^ "In the case of 
 Dale V. Hall, it would seem to have been held that a person who under- 
 takes to carr}' goods by water is liable as a common carrier, notwith- 
 standing the declaration does not allege him to be a common carrier, 
 but is founded upon a special contract. That case was in fact against 
 a common ho}- man for the negligent loss of goods ; and the court was of 
 opinion that, as he was a common hoy man, evidence to show that he 
 was in fact guilty of no negligence was improperly admitted in his 
 defence. It is difficult to perceive how, upon the actual frame of the 
 declaration, any general responsibility as a common carrier could be 
 inferred. And the case, if it proceeded upon the notion that ever}' car- 
 rier by water for hire was to be deemed a common carrier, and respon- 
 sible as such, is inconsistent with later decisions. "^ In § 508, speaking 
 of the duties and obligations of carriers, Dr. Story says: "One of the 
 duties of a common carrier is to receive and carry all goods offered for 
 transportation, upon receiving a suitable hire. This is the result of his 
 public employment as a carrier ; and, by the custom of the realm, if he 
 will not carry goods for a reasonable compensation upon a tender of it, 
 and a refusal of the goods, he will be liable to an action, unless there is 
 a reasonable ground for the refusal." In Aston v. Heaven,^ which was 
 an action against the defendants as proprietors of a stage-coach, for 
 negligent driving, in consequence of which the coach was overturned 
 and the plaintiff injui'ed, Eyre, C. J., said: "This action is founded 
 entirely on negligence. It has been said by the counsel for the plaintiff, 
 that, wherever a case happens, even where there has been no negligence, 
 he would take the opinion of the court whether defendants circumstanced 
 as the present — that is, coach-owners — should be liable in all cases except 
 where the injur}' happens from the act of God or of the king's enemies. 
 I am of opinion the cases of the loss of goods by carriers and the present 
 are totally unlike. When that case does occur, he will be told that car- 
 riers of goods are liable by the custom, to guard against frauds they 
 
 1 1 Wils. 281. more, 2 Bos. & Pul. 417; S.<itterlee v. Groat, 1 
 
 ' § 504. Citing Hutton v. Osbom, 1 Selw. M'end. 272, and Boucher v. Lawson, Cas. 
 N. P. (10th ed.) :i'j;) note b; Robinson v. Dun- temp. Ilurdw. 1;'4. ^ i Esp. .5:3.
 
 OBLIGATION TO RECEIVE AND CARRY. 453 
 
 English Court of Common Pleas. 
 
 might be tempted to commit, by taking goods intrusted to them to carry 
 and then pretending they had lost or been robbed of them, and because 
 they can protect themselves ; but there is no such rule in the case of the 
 carriage of the persons. This action stands on the ground of negligence 
 alone." In a similar case, — Christie v. Griggs,^ — the rule was laid down 
 by Lord Mansfield in the same way. " There was," he said, " a dif- 
 ference between a contract to carry goods and a contract to carry pas- 
 sengers. For the goods, the carrier was answerable at all events. But 
 he did not warrant the safet}' of the passengers. His undertaking as to 
 them went no further than this, that as 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 had no 
 remedy for the misfortune he had encountered." So, in Crofts v. 
 Waterhoiise,^ Park, J., said: "A carrier of goods is liable in all events 
 except the act of God or the king's enemies ; a carrier of passengers is 
 only liable fov npgligence.'^ Sharpe v. Orey^ is not inconsistent with 
 these cases ; it decides, in substance, that a coach-proprietor is bound 
 to use all ordinary care and diligence to provide a safe vehicle. [Cress- 
 well, J. — It goes a little further than that; it lays it down that he is 
 bound at all events to provide a sound coach. Wilde, C. J., referred 
 to Bremner v. Williams.'^'] The only authority that bears against the 
 defendants is an American case cited by Dr. Story, — JencTcs v. Cole- 
 man.^ There was an action against the proprietor of a steamboat run- 
 ning from New York to Providence, in the United States, for refusing 
 to receive the plaintiff on board as a passenger. The plaintiff was the 
 known agent of the Tremont line of stage-coaches. The proprietors of 
 the steamboats President and Benjamin Franklin had, as the plaintiff 
 knew, entered into a contract with another line, called the Citizens' 
 Stage-Coach Company, to carry passengers between Boston and Provi- 
 dence in connection with the boats. The plaintiff had been in the habit 
 of coming on board the steamboats at Providence and Newport for the 
 purpose of soliciting passengers for the Tremont line, which the proprie- 
 tors of the President and Benjamin Franklin had prohibited. It was 
 held that if the jury should be of opinion that the above contract was 
 reasonable and bond fide^ and not entered into for the purpose of an 
 oppressive monopoly, and that the exclusion of the plaintiff was a rea- 
 sonable regulation in order to carry this contract into effect, the proprie- 
 tors of the steamboats would be justified in refusing to take the plaintiff 
 
 1 2 Camp. 79 ; s. c ante, p. 181. * 1 Car. & P. 414. 
 
 2 3 Bing. :519; 11 J. B. Moo. 133. * 2 Sumn. 221; s. c. ante, p. 11. 
 
 3 9 BiiiK. 457; 2 Moo. & S. 620.
 
 454 CARRIERS OF PASSENGERS BY WATER. 
 
 Benett v. Peninsular and Oriental Steamboat Company. 
 
 on board. In giving judgment in that case, Dr. Story seems to assume, 
 that, but for the excuse, the action would have lain. 
 
 The second point is one of great importance. Assuming that the 
 defendants would be subject to the liabilities of common carriers if the 
 whole of the alleged duty was to be performed within the realm, are 
 extra-territorial carriers subject to the same liabilities, and bound by 
 the same custom? Is the liability to enure throughout the voyage, or 
 is it to vary according to the law of the port from which the vessel 
 starts? Suppose a party requires to be conveyed from Corunna to Cadiz 
 only, would the custom attach there? If not, where does the common- 
 law liability end? 
 
 A rule nisi having been granted, — 
 
 Petersdorff (with whom was Byles^ Serjt. ) showed cause. — The 
 points urged on the part of the defendants, on moving for the rule, 
 were, first, that the defendants, as carriers of passengers only, are 
 not subject to the liabilities that attach by the custom of the realm 
 to common .carriers of goods; secondly, that the rules which govern 
 common carriers do not apply to the owners of vessels going beyond 
 the limits of her majesty's dominions. If the argument upon either 
 point be correct, this declaration discloses no cause of action ; and, 
 consequently, the motion should have been to arrest the judgment ; 
 for the court will not award a new trial where, from the insufficiency 
 of the declaration, a new trial must be unavailing. [Wilde, C. J. — 
 Whether the declaration is good or not, the plaintiff was entitled to 
 have the issues disposed of at nisi prius, with a view to costs.] The 
 declaration does not allege that the defendants were common carriers 
 according to the custom of the realm, but merely that they were com- 
 mon carriers of passengers for hire ; and it alleges a breach of duty 
 in refusing to receive the plaintiff as a passenger on board their vessel, 
 although there was suflicient room. And the third plea is, that the 
 defendants were not common carriers of passengers for hire, modo et 
 forma. [Maule, J. — The third issue merely presents a question of fact : 
 whether or not the defendants were common carriers of passengers for 
 hire^ from Southampton to Gibraltar. It is enough for you to show that 
 the question of law does not arise upon the third plea.] The Lord 
 Chief Justice, at the trial, construed the term "common carriers," in 
 the declaration and the third plea, in the same sense as the parties them- 
 selves had given to it. 
 
 The court called upon — 
 
 Ogle (with whom was the Attorney- General) to support the rule. 
 There is no consideration alleged on the face of the declaration : it is
 
 OBLIGATION TO RECEIVE AND CARRY. 
 
 455 
 
 English Court of Common Pleas. 
 
 founded upon the assumed common law liability of the defendants as 
 common carriers. It was necessary to state the particular situation 
 and character of the defendants, in order to show how the duty for the 
 breach of which the action is brought arose ; ^ but it was not necessary 
 to allege that the defendants were common carriers according to the 
 custom. In Chitty on Pleading, vol. 1, p. 238, it is said that, "in an 
 action against a common carrier, or innkeeper, for the loss of goods, 
 etc., — which is a liability founded on the common law, or custom of the 
 realm, — it is not only unnecessary, but improper, to recite such cus- 
 tom ; because it tends to confound the distinction between special 
 customs, which ought to be pleaded, and the general customs of the 
 realm, of which the courts are bound to take notice without pleading." 
 The third plea, therefore, very properly, denies that the defendants 
 were common carriers according to the custom, which is impliedly stated 
 in the declaration ; for, without that implication, the declaration would 
 clearly be bad, as showing no consideration for the defendants' dutj'. 
 [Maule, J. — The allegation of duty is idle. 2] The words "common 
 carriers " have a known technical meaning. [Maule, J. — The declara- 
 tion states, not that the defendants were common carriers according to 
 the custom of England, or from one place to another within the realm, 
 but that they were common carriers of passengers for hire from South- 
 ampton to Gibraltar, in Spain. The third plea denies that the defend- 
 ants were common carriers of passengers for hire as alleged in the 
 declaration ; issue is taken upon that, and the jury have found that 
 they v:ere such common carriers.] 
 
 Wilde, C. J. — It seems to me that there is no ground for setting 
 aside the verdict found for the plaintiff on the third issue, and entering 
 a verdict on that issue for the defendants. The declaration alleges that 
 the defendants were common carriers of passengers for hire in and by 
 a certain steam-vessel from Southampton to Gibraltar, in Spain, import- 
 ing, therefore, a course of trading between a port within the realm and 
 a port out of the realm. The declaration then goes on to allege that 
 the plaintiff was desirous of becoming a passenger on board the said 
 vessel from Southampton to Gibraltar, and tendered himself to the 
 defendants to be so carried, and requested them to receive him as a 
 passenger, and that he was ready and willing to pay all reasonable 
 passage-money and reward for being so carried ; but that the defendants, 
 although there was sufficient room and accommodation for the purpose. 
 
 » Ohitty'8 PI. (7th ed., by Greening) 399. « Brown v. Mallett, 5 C. B. 599.
 
 456 CARRIERS OF PASSENGERS BY WATER. 
 
 Benett v. Peninsular and Oriental Steamboat Company. 
 
 in disregard of their duty in that behalf, refused to receive or carry 
 him. To tliis the defendants pleaded, amongst other pleas, that they 
 were not common carriers of passengers for hire, in manner and foiTQ 
 as in the declaration alleged. The evidence offered on the part of the 
 plaintiff to sustain the issue was, that the defendants had issued bills 
 and circulars holding themselves out as ready to carry goods and pas- 
 sengers for hire from Southampton to Gibraltar and certain intermediate 
 places ; that their practice had been in correspondence with their circu- 
 lar ; and that they refused to receive the plaintiff on board, although 
 there was plenty of room. I left it to the jury to say what was the 
 correct inference to be drawn from that evidence, — whether they were 
 satisfied that the defendants carried on the business of common carriers 
 of passengers for hire from Southampton to Gibraltar. The jury found 
 that the defendants did carry on the business of common carriers of 
 passengers in the manner alleged in the declaration. The question is, 
 whether I was right in so leaving it to the jury. It is to be observed 
 that the declaration alleges the defendants to be common carriers from 
 a place that is within, to a place that is without, the realm. The question 
 is, can a man be a "common carrier" of passengers from a place that 
 is within the realm to a place out of it? Mr. Justice Story, in the very 
 able treatise that has been referred to, defines a common carrier to be 
 a person who does just what the defendants in this case are proved to 
 have done. He says (§ 495): "A common carrier has been defined to 
 be one who undertakes, for hire or reward, to transport the goods of 
 such as choose to employ him, from place to place." It is said that 
 the evidence here did not support the third issue, because the term 
 "common carrier" imports one who carries from and to places within 
 the realm only. But, if we so construe it, we make the declaration bad 
 and inconsistent ; whereas, if we read it as meaning " common carriers " 
 according to the definition given by Dr. Story, viz., as persons holding 
 themselves out as undertaking, for hire or reward, to transport the goods 
 of such as choose to employ them, from place to place, we shall be 
 giving the allegation a sense that will make it consistent with the breach. 
 I see no reason for holding that "common carriers" must of neces- 
 sity mean persons employed to carry within the realm, and according 
 to the custom. It seems to me that this declaration, and the issue 
 taken upon it by the third plea, may be understood in a sense that will 
 make the whole consistent, that the question was properly left to the 
 jury, and that the verdict is right. 
 
 CoLTMAN, J. — Mr. Ogle's argument is founded entirely upon the
 
 OBLIGATION TO RECEIVE AND CARRY. 457 
 
 English Court of Common Pleas. 
 
 ordinary form of declaration in actions against inland carriers. The 
 declaration usually states that the defendant was a common carrier of 
 goods and chattels for hire, from a certain place to a certain other 
 place, — though, perhaps, it is not in all cases necessary to give the 
 precise termini^ — and it goes on to state the delivery of the goods to 
 the defendant, to be safely and securely carried and conveyed by him to 
 their destination. The places from and to which the goods are to be 
 carried must x>rimd facie be understood to be in England ; and, as the 
 defendant is alleged to be a common carrier for hire from one place in 
 England to another place also in England, his liability arises from the 
 custom of England, which need not be alleged. This declaration, how- 
 ever, when it calls the defendants " common carriers," does not mean 
 to allege that they are carriers within the realm, and according to the 
 custom of the realm, but that they are persons who were in the habit of 
 conveying passengers for hire from England to certain places beyond 
 the seas. Whether any particular duty results from that, is altogether 
 another matter. I think the question was correctly left to the jury by 
 the Lord Chief Justice, and that the issue was properly found for the 
 plaintiff. 
 
 Maule, J. — I also think there is no ground for disturbing the ver- 
 dict on the third issue. The question of fact raised by that issue was, 
 whether or not the defendants were common carriers of passengers for 
 hire from Southampton to Giliraltar, in Spain. I think that issue was 
 properly found for the plaintiff. It is true that ambiguous expres- 
 sions in a declaration, that are pleaded over to, are to be understood in 
 such a sense as will sustain the declaration. So, if it be necessary to 
 sustain a declaration that a place that is mentioned be in England, the 
 declaration being pleaded over to, it will be assumed to be so. Thus, 
 in Kearney v. King,^ where the declaration stated that a bill was drawn 
 and accepted at Dublin, without alleging it to be at Dublin in Ireland, 
 the court would not exclude the possibility of its having l)een drawn 
 and accepted at a place called Dublin in England. So, if a declaration 
 were to allege that the defendant was a common carrier of goods or 
 passengers for hire from London to Vienna, it would be assumed that 
 both these places were in England. Here, however, the declaration 
 states that the defendants were possessed of a certain steam-vessel 
 called the Montrose, lying at Southampton, and bound to, and about to 
 sail for, a place beyond the seas, to wit, Gibraltar, in Spain, for the 
 
 1 2 Barn. & Aid. 301 ; 1 Chit. Rep. 28.
 
 458 CARRIERS OF PASSENGERS BY WATER. 
 
 Benett v. Peninsular and Oi'iental Steamboat Company. 
 
 carriage of passengers from Southampton aforesaid to Gibraltar afore- 
 said ; and tliat the defendants were common carriers of passengers for 
 hire, in and by the said steam-vessel, from Southampton aforesaid to 
 Gibraltar aforesaid. The view suggested by Mr. Ogle is, that the alle- 
 gation that the defendants are common carriers of passengers for hire 
 between Southampton and Gibraltar, in Spain, means that they are 
 carriers who somehow or other are subject to the same liabilities and 
 duties as carriers within the realm are subject to. To that proposition 
 I cannot assent. As soon as you establish the termini, the only ques- 
 tion raised by the third plea is, whether the defendants actually did 
 those things which Dr. Story defines as the duties of a common carrier. 
 It was suggested by the Attorney- General, on moving for the rule, that 
 the liabilities of common carriers of goods differ from those incurred by 
 common carriers of passengers. But, whatever the law may be, I think 
 the allegation here can only mean that the defendants were common 
 carriers of passengers in the sense in which Dr. Story speaks of con? 
 mon carriers of goods. Common carriers would not cease to be com- 
 mon carriers although their common-law liabilities should be abrogated 
 by act of Parliament. I think the question was properly left to the 
 jury, and properly found by them. 
 
 V. Williams, J. — I am entirely of the same opinion. The issue 
 arises on a traverse which threw upon the plaintiff the necessity of 
 proving that the defendants were common carriers of passengers for 
 hire from Southampton to a certain place beyond the seas, to-wit, Gib- 
 raltar, in Spain. I think the plaintiff is entitled to retain the verdict 
 found for him upon that issue. If the defendants are not liable to an 
 action of this sort, they might have moved in arrest of judgment, or 
 have brought a writ of error. 
 
 Byles, Serjt., observed that it was agreed at the trial that the decision 
 of the court should place the parties in the same position as if the Lord 
 Chief Justice had directed the jury in conformity therewith, and a bill 
 of exceptions had been thereupon tendered and sealed. 
 
 Wilde, C. J. — That certainly was so; though I very much doubt 
 both the propriety and the convenience of the arrangement. 
 
 Maule, J. — Then, this is, in effect, a sort of extra-judicial writ of 
 error, — from the judge who presided at the trial, to the court, — before 
 proceeding to the Exchequer Chamber. 
 
 Hule discharged.^ 
 
 ' No point arose in respect of Gibraltar being a possession of the British crown. It was 
 stated in the declaration to be in Spain.
 
 JURISDICTION OVER MARINE TORTS. 459 
 
 Circuit Court of the United States, First Circuit. 
 
 2. jurisdiction of courts of admiraxty over torts com- 
 mitted upon passengers — what conduct of the master 
 amounts to a tort. 
 
 Chamberlain v. Chandler.* 
 
 Circuit Court of the United States for the First Circuit, 1823. 
 
 Hon. Joseph Story, Associate Justice of the Supreme Court. 
 " John Davis, District Judge. 
 
 1. Jurisdiction of Courts of Admiralty. — Courts of admiralty have jurisdiction of per- 
 
 sonal torts and wrongs committed on a passenger on ttie high seas by the master of the 
 ship. 
 
 2. Authority of Master of Vessel. —The authority of a master at sea is necessarily 
 
 summary, and often absolute. For the time being, he exercises the rights of sovereign 
 control; and obedience to his will, and even to his caprices, becomes almost indis- 
 pensable. 
 
 3. "What Conduct of the Master will amount to a Tort. — It is not a correct proposi- 
 
 tion of law, that, if the person of a passenger is untouched, if acts of oppression and 
 insult on the part of the master towards a passenger do not amount to an assault and 
 battery, they are not to be redressed. Passengers can claim something more, under 
 the contract for passage, than mere shiproom and transportation, viz., respectful 
 treatment, protection from general obscenity, immodesty of approach, wanton disre- 
 gard of feelings, threats of personal injury, restraint within unreasonable limits, and 
 may demand suitable food and the common means of relief in cases of sea-sickness 
 and ill-health. 
 
 This was a libel in admiralty, brought by the libellants (being hus- 
 band, wife, and children), who were passengers on board of the ship Pearl, 
 on a voyage from the island of Woakoo to Boston, against the defend- 
 ant, who was master of the ship for the voyage, for damage for asserted 
 ill-treatment and injuries to them during the voyage. The defendant 
 put in, by way of answer, an allegation denying the ill-treatment and 
 injuries. The cause came on to be heard upon the evidence, and was 
 argued by — 
 
 Hubbard and Webster, for the libellants, and by T. Fuller, for the 
 defendant. 
 
 Story, J. — No exception has been interposed against tlie jurisdic- 
 tion of the court in this case. I wish, however, that it should be under- 
 stood that the point has not passed sub silentio, but that it has attracted 
 the consideration of the court. The contract itself is a maritime con- 
 tract, for the conveyance of passengers on the high seas, and the wrongs 
 complained of are gross ill-treatment and misconduct in the course of 
 the voyage, while on the high seas, by the master, in breach of the stip- 
 
 • Reported, 3 Mason, 242.
 
 460 CARRIERS OF PASSENGERS BY WATER. 
 
 Chamberlain v. Chandler. 
 
 ulations necessarily implied in his contract, of the duties of his office, 
 and of the rights of the libellauts under the maritime law. The juris- 
 diction of courts of admiralty over torts committed in personam on the 
 high seas has never, to my knowledge, been doubted or denied by the 
 courts of common law, and has been often recognized by adjudications 
 in the admiralty.^ In 4 Institutes^ 134, the common-law judges admitted, 
 in the fullest manner, that, " of contracts, pleas, and quereles made upon 
 the seas, etc., the admiral hath, and ought to have, jurisdiction; and 
 no precedent can be shown that any prohibition hath been granted for 
 any contract, plea, or querele concerning any marine cause, made or 
 done upon the sea." As to the competency of the admiralty to award 
 damages for personal wrongs in cases of captures, as prize, Le Caux v. 
 Eden^ is directly in point; and further, that in such cases (i.e., of 
 prize) it is exclusive. ^ No distinction has been recognized between 
 torts to property and torts to persons on the high seas, and in Le Caux 
 V. Eden the court seemed to think that none existed. In the case of 
 Lindo V. Rodney,'^ the court held that the operation of the statutes of 
 Richard was only " to confine the admiralty by the locality of the thing 
 done, which is the cause of action; it must be done on the high seas." 
 Indeed, a tort on the high seas is strictly* within the words of those 
 statutes, a plea or querele arising on the high seas. And it cannot 
 make any difference, in point of principle, whether it be a direct or con- 
 sequential wrong, whether it be an assault and imprisonment, or a 
 denial of all comforts and necessaries, and a course of brutal insult and 
 maltreatment, whereby the health of the party is materiall}' injured, or 
 he is subjected to gross ignominy and mental suffering. 
 
 The admiralty has been accustomed to deal with subjects of this 
 nature from early times. In the case of The Ruckers,^si civil suit for 
 damages was brought in the admiralty for an assault by the master of 
 a ship on a passenger on the high seas, and on full consideration the 
 jurisdiction was sustained. On that occasion the court directed the 
 records to be searched, and the registrar reported " that man}' instances 
 were to be found of proceedings on damages on behalf of persons 
 described as part of the ship's company, against officers or others 
 belonging to the same ship, and several against persons belonging to 
 other ships ; and there were other instances of proceedings on the part 
 of A. B. against C. D., without any specification of the capacity in 
 
 1 2 Brown'B Adm. 108; 3 Bla. Comm. 106. Brown's Adm. IDS, 110; 3 Bla. Comm. 106; 
 
 » 1 Doug. 572. Zouch's Adm. Juiisdic. 104. 
 8 Sir Leoline Jenkins's "Works, p. 774, Vol. < 1 Doug. 591, note. 
 
 II. See also Caton v. Burton, Cowp. 330; 2 * 4 jjob. 73.
 
 JURISDICTION OVER IMARINE TORTS. 461 
 
 Circuit Court of the United States, First Circuit. 
 
 which the persons stood." Sir William Scott said : " Looking to the 
 locality of the injury, that it was done on the high seas, it seems to be 
 fit matter for redress in this court." Dr. Godolphin (a very learned 
 admiralty judge), in enumerating the various subjects of admiralty 
 jurisdiction, includes "all affairs relating to mariners, whether ship 
 officers or common mariners, their rights and privileges respectively ; 
 their office and duty ; their wages ; their offences, whether by wilful- 
 ness, casualty, ignorance, negligence, or insufficiency, with their pun- 
 ishments." 1 
 
 My judgment accordingly is, that the libel is well founded in point of 
 jurisdiction; and that, if the injuries complained of are established in 
 evidence, the plaintiffs are entitled to redress, constituting, in the tech- 
 nical phrase of the admiralty, "a cause of damage." 
 
 In respect to a case like that before the court, a suit by passengers 
 (a husband, wife, and family) against the master of the ship for con- 
 tinued wanton cruelty and ill-treatment, it is certainly entitled to be 
 listened to with attention. The authority of a master at sea is neces- 
 sarily summary, and often absolute. For the time, he exercises the 
 rights of a sovereign control ; and obedience to his will, and even to his 
 caprices, becomes almost indispensable. If he chooses to perform his 
 duties or to exert his office in a harsh, intemperate, or oppressive 
 manner, he can seldom be resisted by physical or moral force ; and 
 therefore, in a limited sense, he may be said to hold the lives and per- 
 sonal welfare of all on board, in a great measure, under his arbitrary 
 discretion. He is nevertheless responsible to the law ; and if he is 
 guilty of gross abuse and oppression, I hope it will never be found that 
 courts of justice are slow in visiting him, in the shape of damages, with 
 an appropriate punishment. 
 
 In respect to passengers, the case of the master is one of peculiar 
 responsibility and delicacy. Their contract with him is not for mere 
 shiproom and personal existence on board, but for reasonable food, 
 comforts, necessaries, and kindness. It is a stipulation, not for tolera- 
 tion merely, but for respectful treatment ; for that decency of demeanor 
 which constitutes the charm of social life ; for that attention which 
 mitigates evils without reluctance, and that promptitude which admin- 
 isters aid to distress. In respect to females, it proceeds yet farther, — 
 it includes an impHed stipulation against general obscenity, that im- 
 modesty of approach which borders on lasciviousness, and against that 
 wanton disregard of the feelings which aggravates every evil, and 
 endeavors by the excitement of terror and cool malignancy of conduct 
 
 » Spc also Exton'8 Aclm. Jurisdio. 70.
 
 462 CARKIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 to inflict torture upon susceptible minds. What can be more disrepu- 
 table, and at the same time more distressing, than habitual obscenity, 
 harsh threats, and immodest conduct to delicate and inoffensive 
 females? What can be more oppi-essive than to confine them to their 
 cabins by threats of personal insult or injury? What more aggravating- 
 than a malicious tyranny, which denies Ihem every reasonable request, 
 and seeks revenge by withholding suitable food and the common means 
 of relief in cases of sea-sickness and ill-health? It is intimated that 
 all these acts, though wrong in morals, are yet acts which the law does 
 not punish ; that if the pei'son is untouched, if the acts do not amount 
 to an assault and battery, they are not to be redressed. The law looks 
 on them as unworthy of its cognizance. The master is at liberty to 
 inflict the most severe mental sufferings, in the most tyrannical manner,, 
 and yet, if he withholds a blow, the victim may be crushed by his 
 unkindness. He commits nothing within the reach of civil jurispru- 
 dence. My opinion is that the law involves no such absurdity. It is 
 rational and just. It gives compensation for mental sufferings occa- 
 sioned by acts of wanton injustice, equally whether they operate by 
 way of direct or of consequential injuries. In each case, the contract 
 of the passengers for the voyage is in substance violated ; and the 
 wrong is to be redressed as a cause of damage. I do not say that every 
 slight aberration from propriety or dut3', or that every act of unkind- 
 ness or passionate folly, is to be visited with punishment ; but if the 
 whole course of conduct be oppressive and malicious, if habitual im- 
 modesty is accompanied by habitual cruelty, it would be a reproach to 
 the law if it could not award some recompense. 
 
 Let us now proceed to the consideration of the evidence in this case, 
 so far as it applies to the libel, which is not confined to mere acts of 
 wanton cruelty and misconduct, but embraces in its grievances what the 
 law in its strictest sense deems assaults and batteries. 
 
 [The judge went into a full examination of the evidence, and came 
 to the conclusion that the libel was sufficiently proved to entitle the 
 libellants to damages ; and he accordingly decreed that the defendant 
 should pay $400 damages (being the amount of his share of the passage- 
 money received for the passage of the libellants) and costs of suit.] 
 
 Decree accordingly. 
 
 NOTES. 
 
 § 1. Both Owner and Master are Common Carriers, although Passen- 
 gers are carried to a Foreign Country. — Both the owner and master of a 
 vessel, undertaking for hire or reward to transport pasMeujirs :ro:ii place u
 
 WHO IS SUCH A CARRIER. 
 
 463 
 
 Who is a Passenger. 
 
 place, and who are bound to cany all proper persons who offer themselves for 
 carriage, are common carriers of passengers, and subject to the duties imposed 
 by law upon such carriers. ^ The fact that the vessel carries passengers from 
 a place within the realm to a point beyond, will not exempt them from the 
 obligation to receive and carry all proper persons who offer themselves and are 
 ready and willing to pay the price of passage .^ 
 
 § 2. Who is a Passenger. —A person may be on board of a ship in such a 
 capacity as to be considered neither master nor one of the crew, nor sustain the 
 legal relation of passenger. Thus, it was held by Dr. Lushixgton,'^ judge of 
 the High Court of Admiralty, that a person who had paid no passage-money, but 
 who went on board by permission of the master, and messed with him, upon the 
 understanding that he should do what he could in the working of the ship for 
 his passage, was neither one of the crew nor a passenger; that he was, in fact, a 
 nondescript. So, where the master of a vessel had taken on board, without the 
 knowledge of the owners, his wife and her father, who paid no fare, it was held 
 that they were not passengers.* 
 
 Soldiers on board ship, under the command of their officers, do not occupy the 
 relation of passengers, and they can recover compensation for services in assist- 
 ing in keeping the vessel afloat by bailing, working under the command of their 
 own officers and keeping up military discipline during the time they were so 
 employed.^ The stcUus of a soldier on shipboard, for whose transportation 
 the government had contracted, is not changed by the expiration of his term 
 of service and honorable dischai-ge therefrom during the voyage. While the 
 contract of transportation is being performed, it is not competent for the 
 government by the act of discharge, or by the soldier receiving it, to change 
 its terms so as to give such person new rights or impose new obligations upon 
 the master.^ 
 
 The question as to what relation a person held towards a navigation company, 
 whether that of emploj-ee or passenger, was presented in a California case," the 
 facts of which were as follows: At the time the cause of action accrued, the 
 defendants were common carriers of freight and passengers between San Fran- 
 cisco and Petaluma, using steamboats between San Francisco and Rudesel'* 
 Landing, and between the latter place and Petaluma a small locomotive and 
 train of cars. There was no separate charge for passage ; it was all one line 
 and was under one management, the captain of the steamboat acting as con- 
 ductor of the cars. At the time of the accident, the plaintiff was keeping a bar 
 upon the steamboat, paying the company for this privilege and the use of a 
 stateroom and such meals as he might desire upon the boat, and receiving to 
 his ovm use the profits of all sales of liquors. The plaintiff resided at Peta- 
 
 1 Chamberlain v. Chandler, 3 Mason, 242; * The Lion, L. R. 2 Adm. 102; a. c. 38 L. J. 
 
 ante, p. 459; White v. McDonough, 3 Sawyer, (Adm.) 51. 
 
 311; Anderson v. Ross, 2 Sawyer, 91. '- The Steamer Merrimao, 1 Ben. 201; «. c. 
 
 ^ Benett v. Peninsular etc. Steamboat 1 Ben. 68. 
 
 Co., ante, ]>. 448. * White v. McDonough, 3 Sawyer, 311. 
 
 ^The Hanna, 36 L. J. (Adm.) 1; «. c. 15 ^ Yeomana v. Contra Costa etc. Xav. Co., 
 
 Week Rep. 2(53; L. R. 1 Adm. 283; 15 L. T. 44 Cal. 71. 
 (N. 8.) 334.
 
 464 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 luma, and when about to enter the cars at that place, intending to make the 
 usual daily trip to San Francisco, the boiler of the locomotive, then in charge 
 of the defendants' engineer, exploded and caused the personal injury for which 
 the action was brought. The question was, whether his position as barkeeper 
 did not place him in the relation of an employee to the Navigation Company. 
 On appeal, the court said: "As barkeeper, he was in no sense an employee 
 of the defendants. He was a lessee, for a monthly rent, of an apartment upon 
 their boat, which he occupied for purposes of trade. His transportation over 
 the route was a part of the consideration for the monthly payment. The 
 defendants had no interest in the receipts of his business, and could not hold 
 him accountable for its proper conduct. The parties were in no sense members 
 of the same establishment for one common purpose. The vending of liquors 
 and cigars to passengers was no part of the business in which the transportation 
 company were engaged. The case would have been the same if the plaintiff had 
 leased an apartment upon the boat for any other species of trade. If a cigar- 
 vender should rent and occupy, for the purposes of his trade, a corner of a 
 merchant's store, and an explosion should occur through the negligence of the 
 merchant's clerk, it would not be contended that the merchant would not be 
 responsible in damages to the cigar-vender for personal injuries resulting from 
 the accident. The fact that the place of trade was upon a steamboat can make 
 no difference in the application of the principle." Judgment for the plaintiff 
 was therefore affirmed. 
 
 One who enters upon a passenger-steamboat in good faith, to take passage 
 thereon, is there in the relation and character of a passenger, and the owner 
 of the boat owes to him the duty of a carrier of passengers, although no fare 
 has been paid.^ 
 
 § 3. When the Master of a Vessel may refuse to receive Passengers. — 
 Generally speaking, common carriers of passengers by water, as by land, are 
 bound to receive and carry all proper persons who offer themselves for transpor- 
 tation to the places to which the carriers hold themselves out as such.- But 
 there may be sufficient reasons for refusing to receive passengers. If his vessel 
 is full, or so full that those who have goue on board while there was room 
 would be incommoded by the addition of other passengers, the carrier may 
 decline to receive them. Indeed, passengers who have contracted for carriage, 
 and, upon going aboard, find that the vessel is so full as to seriously inconven- 
 ience them, may recover back the passage-money already paid, and any damages 
 they may have suffered by reason of preparing themselves for a voyage upon that 
 vessel, or by reason of having to wait for another.* 
 
 The right of passage on board of a vessel is subject to such reasonable regula- 
 
 J Cleveland ». New Jersey Steamboat Co., age without giving the passenger reason - 
 
 68 N. Y. 306; a. c. 5 Hun, 523. able opportunity to remove his baggage, or 
 
 2 Benett v. Peninsular etc. Steamboat Co., with intent to carry it beyond his reach, he 
 
 6 C. B. 775, ante, p. 448; Pearsons. Duane, 4 thereby terminates the contract of carriage. 
 
 Wall. 605, ante, p. 17; Jencks v. Coleman, and is liable for carrying away the baggage. 
 
 2 Sumn. 221, ante, p. 11. If a ship-owner Holmes i'. Doane, 3 Gray, 328. 
 
 refuses to carry a passenger whom he had ^ xhe Pacific, 1 Blatchf. 569. 
 engaged to carry, and proceeds on the voy-
 
 REFUSAL TO KECEIVE PASSENGERS. 465 
 
 Expulsion of Passengers. 
 
 tions as the owners may prescribe for the due accommodation of passengers and 
 for the due arrangement of their business. They are not bound to receive as 
 passengers persons who refuse to obey the reasonable regulations of the vessel, 
 who are guilty of gross and vulgar habits, who would make disturbances, whose 
 •characters are doubtful, dissolute, or suspicious ; and, a fortiori, whose charac- 
 ters are unequivocally bad. Nor are they bound to admit passengers on board 
 whose object it is to interfere with the interests or patronage of the proprietors, 
 so as to make the business less lucrative,^ So, too, a master of a vessel may 
 refuse to receive a passenger to be carried to a place from whence he has been 
 banished, if the circumstances of the banishment would, in the opinion of the 
 master, tend to promote further difficulty should he be returned to that place. ^ 
 
 § 4. When a Passenger may be expelled from a Vessel. — But, in the case 
 just noticed,^ it was said that after the vessel has put out to sea it is too late to 
 take exceptions to the character of a passenger, or to his peculiar position, pro- 
 dded he violated no inflexible rule of the boat in getting on board, unless he 
 misbehaves during the voyage. This statement seems to have been based upon 
 an instruction given to a jury by Rolfe, B.., in an English case.* In this latter 
 case, the plaintiff (a tradesman) and his friends took passage on an excursion 
 from London and return, paying the passage-money for the trip. On the return, 
 as the vessel approached Gravesend, the captain said to the plaintiff and his 
 friends: " You are well kno\vn; you sha'n't go with me to London; 3'ou belong 
 to the swell mob, and are pickpockets. You must go ashore at Gravesend; and 
 if you will not go by fair means, you shall be compelled to go." On arriving at 
 Gravesend, they left the vessel. They had considerable difficulty iu procuring 
 means of conveyance to London, because they had been turned out of the 
 defendant's vessel. In instructing the jury, Rolfe, B., said: "The defendants 
 were responsible for any injury naturally I'esulting from the acts of the captain 
 when acting as their servant. Even supposing the plaintiff and his party had 
 been pickpockets, or belonged to the swell mob, that might be a reason for watch- 
 ing them, but, so long as they were not guilty of any impropriety on board, 
 formed no justification for putting them ashore; " and he held that the plaintiff 
 was entitled to a fair compensation for the injury received, so far as the injury 
 arose from the act of the captain in putting him on shore. It would seem that 
 there can be no distinction in principle between refusing to receive a passenger 
 because the carrier has reasonable grounds to believe that he will become obnox- 
 ious, and putting him ashore for the same reason. And in a case where a drunken 
 passenger on a horse-railroad was ejected, the court held it to be unnecessary to 
 wait until an overt act was committed, to justify the conductor in expelling him.* 
 
 § 5. Duty of the Carrier to convey Passenger to the Port to which he has 
 contracted to carry him. — It is incumbent upon the carrier to transport his 
 passengers to the port to which he has contracted to carry them. And when pas- 
 
 1 Jencks v. Coleman, ante, p. 11. * Coppin v. Braitliwaite, 8 Jur. 875. 
 
 « Pearson v. Duane, 4 Wall. 605; a.c.ante, <* Vinton v. Middlesex K. Co., 11 Allen, 
 
 p. 17. 304, 307 ; ante, p. 6. See also The People v. 
 
 8 Pearson v. Duane, supra. Caryl, 3 Park. Cr. Cas. 326. 
 
 SO
 
 466 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 sengers are conveyed, without their consent, to a different port from that agreed 
 upon at the time of sailing, no recovery can be liad by the carrier for the amount 
 of tlieir passage-money ; ^ and if tliey have suffered damage by reason of not being 
 carried to the proper port, they may recover compensation in an action there- 
 for,'^ whether they made the contract for passage with the master of the ship 
 or with a ship-agent, if the action of tlie master in reference to the matter is 
 such as to impliedly ratify the acts of tlie ship-agent, and they are received on 
 board as passengers to the port to which they contracted to be carried. ThuSj 
 it appeared that the libellants, in number more than one hundred, had engaged 
 with a ship-agent at Cork for a passage to New York, and some of them had 
 purchased tickets, in the first instance, to sail direct to that port ; but the vessel 
 in which it was proposed to carry them not being ready for sea, the ship-agent 
 chartered, it was said, the "between decks" of the Wataga, a vessel then in 
 port, and bound to Philadelphia, and gave to each of the libellants a certificate 
 in the usual form, by which he engaged they should be carried to Philadelphia on 
 board of her, and with a written indorsement that on her arrival at that port 
 they would be forwarded to New York free of expense. These certificates were 
 exhibited to the mate, and afterwards to the master, who took possession of 
 them before the vessel sailed, and retained them until he was compelled to pro- 
 duce them in court. On the arrival of the vessel at Philadelphia, the master 
 refused to forward them to New York, and there was no one at Philadelphia 
 representing the ship-agent, who would do so. It was held that it must be con- 
 sidered that the agreement was made with the master's concurrence, and there- 
 fore binding as his act.* 
 
 If the carrier contracts to carry a passenger to a particular point, with a 
 knowledge of the danger of effecting a landing at that point, such danger will 
 not excuse him for a failure to comply with the contract.* Where the owner of 
 a line of vessels agrees to transport a person from one place to another by a 
 particular line of vessels, and at the time the agreement is made, but unknown 
 to the proprietor, one of the connecting vessels of the line is a total wreck, it 
 is his duty to pi'ovide another with all reasonable diligence.^ In such a case, the 
 act of God does not wholly excuse the carrier from the performance of his con- 
 tract. And the master of a vessel will not be excused from completing the 
 contract of transportation by taking his passengers into another and foreign 
 port and leaving them there, without their consent, because he has learned that 
 another vessel has been compelled to abandon the line on account of hostilities 
 existing at the point of connection.^ 
 
 § 6. Payment of Passage-Money — When it may be recovered back. — The 
 term " freight," usually applied to compensation for the conveyance of the cargo, 
 
 1 McGloin V. Henderson, 6 La. 715. See * Porter v. Str. New England, 17 Mo. 290. 
 
 Gibson v. Bradford, 4 El. & Bl. 586; «. c. 1 ^ Williams v. Vanderbilt, 28 N. Y. 217 
 
 Jiir. (N. S.) .520; 24 L. J. (Q. B.) 159. (affirming s. c. 29 Barb. 491, and overruling 
 
 - The Canadian, 1 Brown's Adm. 11 ; Cop- Briggs v. Vanderbilt, 19 Barb. 222, and Bon- 
 pin V. Braithwaite, 8 Jur. 875; Sunday v. steel v. Vanderbilt, 21 Barb. 26). See also 
 Gordon, 1 Blatchf. & H. Adm. .569. Ward v. Vanderbilt, 4 Abb. App. Dec. 521. 
 
 3 Dennison v. The Wataga, 1 PMla. 468. « West v. Str. Uncle Sara, 1 McAU. 505.
 
 RECOVERY OF PASSAGE-MONEY. 467 
 
 Construction of Contracts of Carnage. 
 
 has been held in its most general sense to iuclude passage-money. The same 
 rules govern the payment of each.' When money is paid by one party in con- 
 templation of some act to be done by the other, and the thing stipulated to be 
 done is not done, the money may be recovered back. Hence, Avhen passage- 
 money is paid in advance, under a contract to carry a passenger to a particular 
 port, and the voyage is broken up ])y a peril of the sea, and the passenger is not 
 carried by reason thereof to his destination, there being no custom, law, or con- 
 tract to the contrary, he may recover back the passage-money thus paid. The 
 contract is entire, and unless the voyage is fully performed by a delivery of the 
 passenger at the port to which the carrier has conti'acted to carry him, nothing 
 has been earned.'^ Of course, in an action against the ship-o%vner, it cannot be 
 recovered back if the passage-money earned on the voyage is to belong to the 
 captain of the vessel.^ 
 
 Unless there is an agreement or usage to that effect, no passage-money is due 
 before the passenger has arrived at his port of destination. On the breaking up 
 of the voyage, if the passenger desires to proceed, his expenses, or the means of 
 proceeding to the port to which he was to be carried, must be paid or tendered 
 to him ; and if this is done when he has not paid his passage-money in advance, 
 and he refuses to proceed, compensation p>-& rata itineris — that is, such part or 
 proportion of the whole passage-money as the part of the voyage performed is of 
 the whole voyage — is demandable of him.* A usage which requires that the 
 passage-money shall be paid in advance, and which does not require its return 
 although the voyage is defeated, does not extend to a case where the money is 
 paid in anticipation of the sailing of the vessel, and she is lost before the com- 
 mencement of the voyage. In such a case, the passage-money could be recovered 
 back.' Where there was a rule of the East India trade, that if a passenger refused 
 to go in consequence of delay in the sailing of the vessel, he was to forfeit 
 one-half of the passage-money agreed for, and it appeared that a vessel bound 
 for the East Indies was advertised to sail by a certain time, and she did not do so, 
 it was held that a person who refused to go after having engaged passage was 
 liable for the one-half of the amount agreed to be paid, unless either time was 
 of the essence of the contract, or the delay in sailing was unreasonable.^ 
 
 § 7. Construction of Contracts of Carriage — Jurisdiction of Admiralty 
 Courts. — Contracts for passenger carriage at sea are within the jurisdiction of 
 the admiralty courts.' In construing such contracts, the general rules of con- 
 struction apply. In an agreement under seal for the hire of the cabins and 
 accommodations for passengers in a ship, where there was a stipulation that if 
 it should be necessary, for the convenience and at the request of the hirer, to 
 
 1 Brown r. Harris, 2 Gray, 350 ; The Aber- « Yates v. Duff, 5 Car. & P. 369 
 
 foyle, 1 Blatchf. 300; The Pacific, 1 Blatchf. ' Dennison v. The Wataga, 1 Phila. 468; 
 
 669. The Aberfoylo, 1 Blatclif. 360; Sunday v. 
 
 - Brown V. Harris, 2 Gray, 359 ; Watson v. Gordon, 1 Blatchf. & H. Adra. 560 ; The Moses 
 
 Duykinck, 3 Johns. 335. And see Mulloy ». Taylor, 4 Wall. 411; The Pacillc, 1 Blatchf. 
 
 Backer, 5 F:ast, 316. 560; The Zenobia, 1 Abb. Adm. 48; s. c. id. 
 
 3 I.ernan v. Gordon, 8 Car. & P. 302. 80; Marshall r. liazin, 7 X. Y. Leg. Obs. 342. 
 
 < Jlowland r.The Lavinia, 1 Pet. Adm. 123. See, coiUra, Brackett v. Hercules, 1 Gilp. 
 
 • Gillan v. Simpkin, 4 Catnp. 240. 1S4.
 
 468 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 put into an intermediate port for stock or otherwise, the hirer would pay all port 
 and necessary charges consequent thereon, it was held that this raised an implied 
 covenant on the part of the captain who let the cabins to put into any such port 
 if desired. There was also a covenant on the part of the captain to permit and 
 suffer the hirer to stow away the baggage of the passengers in a part of the hold. 
 This, it was held, fairly imported that there should be some demand or request 
 made by the hirer for the clearing of the space agreed on ; and that a covenant 
 to keep up a supply of the necessary and usual quantity of water for the use of 
 passengers, etc., is not broken by a deficiency for a short time, occasioned by 
 the unusual length of the voyage.' An officer in the East India Company's ser- 
 \ice came home on a " sick certificate." By an order of the court of directors, 
 officers of his rank coming home under these circumstances were to pay 1,000 
 rupees, and no more, "for their passage and accommodation at the captain's 
 table." The defendant paid this amount into court, but the plaintiff asked 
 for £145, on the ground that, for the regulation price, officers were only entitled 
 to swing their cots in the steerage; that the defendant had a cabin to himself; 
 and that the sum demanded was not more than he received from others who 
 enjoyed the same advantage. It appeared that on board the vessel during that 
 voyage no officers did sleep in the steerage; that the cabin occupied by the 
 defendant would have remained empty, or been filled with stores, if he had been 
 excluded from it ; and that he had not made any express promise to pay more 
 than 1,000 rupees. Lord Ellexborough held that there appeared nothing to 
 raise an implied promise on the part of the defendant to pay more than the 
 regulation sum.^ 
 
 Where A., *' in consideration of §100, to be paid immediately," agreed that he 
 would suffer B. to proceed and go in A.'s vessel as a ijassenger from New York 
 to St. Thomas, and to load on board, for transportation, goods to the value of 
 $600, and B. paid the $100 down, and went on board with his goods, but the 
 'es-el, soon after the commencement of the voyage, was shipwrecked and lost, 
 but the goods were saved and delivered to B., and B. brought an action to recover 
 back the $100, it was held that this was an agreement to receive B. and his 
 goods on board, and not an agreement to transport and deliver them at St. 
 Thomas, and that the plaintiff, therefore, was not entitled to recover back the 
 money thus advanced ; that the considei'ation for the payment of the money was 
 the receiving of B. and his goods on board, and not the transportation or delivery 
 of them.^ 
 
 § 8. Duty ol Carrier as to Accommodation and Treatment of Passengers. — 
 It is the duty of the common carrier by water to provide his passengers with 
 comfortable accommodations both by day and by night, and with a sufficient 
 supply of wholesome food, unless there is a contract to the contrary. An 
 undertaking to carry a passenger in the steerage of a steamship generally 
 incluges the furnishing of such passenger with a berth, unless there is a fair 
 understanding to the contrary. Such a passenger is entitled to the use of 
 the steerage-room, in which to walk about or sit down, during the voyage, with- 
 out exposure to risk or inconvenience from freight therein; but if freight is 
 
 1 Corbyn v. Leader, 6 Car. & P. 32 (affirmed * Adderley v. Cookson, 2 Camp. 15. 
 
 in 10 Bing. 275). ' Watson v. Duykinck, 3 Johns. 335.
 
 DUTIES OF CARRIER DURING THE VOYAGE. 469 
 
 Accommodation and Treatment of Passengers. 
 
 stowed within the steerage-room, it is the carrier's duty to so stow and secure it 
 as not to cause injury to the passengers ; nor can the carrier impose any arbi- 
 trary regulation upon the passengers, with a view of diminishing such risk, — 
 such as that passengers shall remain in their berths during the whole voyage, 
 or in any unusual portion of the steerage. ^ 
 
 Where the plaintiff contracted with the owners of a vessel, and paid for his 
 passage in the cabin, the fact that, when he came on board, the master declared 
 his inability to lodge him in the cabin, and proposed that he should forbear 
 taking his passage, or stay with his baggage on deck, did not absolve the owners 
 from the obligation to accommodate him in the cabin with his baggage.'' 
 
 In determining what are comfortable accommodations and what is a sufficient 
 supply of food, each case would to a gTeat degree depend upon its own circum- 
 stances. There can be no rule which will define every instance of a breach of 
 duty on the part of the carrier in these respects. In a case ' where the captain 
 of a ship was sued for not furnishing good and fresh provisions to a passenger. 
 Lord Denmax, C. J., said: " I think the result of the Avhole is, that the captain 
 did not supply so large a quantity of good and fresh provisions as is usual under 
 such circumstances. But there is no real ground of complaint, no right of 
 action, unless the plaintiff has really been a sufferer; for it is not because a 
 man does not get so good a dinner as he might have had that he is therefore to 
 have a right of action against the captain who does not provide all that he 
 ought." 
 
 While it is the duty of the officers of the vessel to supply cabin-passengers 
 with seats at the table during meals, yet the officers may reserve a table in the 
 dinner-cabin for their own use, and may exclude passengers from it ; and if a 
 passenger should persist in remaining at it after proper notice that it was thus 
 reserved, and that jDrovision would be made for him elsewhere, they would have 
 the right to use so much force as would be necessary to remove him.* Conduct 
 unbecoming a gentleman, in the strict sense of the word, will, it seems, justify 
 the captain of a ship in excluding a passenger from the cuddy table, whom he 
 has engaged by contract to provide for there ; but it is difficult to say in what 
 degree want of polish would, in point of law, warrant such exclusion; but it is 
 clear that if a passenger uses threats of personal violence towards the captain, 
 that officer may exclude him from the table, and require him to take his meals 
 in his own private apartment. But if a passenger be excluded from the cuddy 
 table, and his wife, not from compulsion, but from a wish to be with her hus- 
 band, takes her meals with him in private, this will not amount to a breach of 
 contract on the part of the captain so far as regards the wife." 
 
 In regard to the treatment of passengers by the master of a vessel, Judge 
 Story says: "In respect to passengers, the case of the master is one of 
 peculiar responsibility and delicacy. Their contract with him is not for mere 
 shiproom and personal existence on board." This and other language of Mr. Jus- 
 tice Story in the leading case of Chamberlain v. Chandler^ must be regarded as a 
 most complete exposition of the duties of this officer. It has been frequently 
 
 1 The Oriflamine, 3 Sawyer, 397; «. c. 2 ■• Ellis r. Narragansett Steamship Co., Ill 
 Cent. L. J. 473 ; 7 Oh. Leg. N. 347. Mass. 146. 
 
 2 St. Amand v. Lizardi, 4 La. 243. * Prenrlergast r. Compton, 8 Car. & P. 454. 
 
 3 Young V. Fcwson, 8 Car. & P. 55. • 3 Mason, 242, 245; ante, p. 459.
 
 470 CARKIERS OF PASSExNGEKS BY WATER. 
 
 Notes. 
 
 quoted and made the basis of decision in cases of a similar character.^ Respect- 
 ful treatment of the passengei* is equally due from the other officers and the 
 crew of the vessel as it is from the captain, and the master and owners of the 
 vessel are liable for damages occasioned by the want of it.^ And seamen have 
 no right, even in cases of extreme peril to their own lives, to sacrifice the lives 
 of passengers for the sake of preserving their own. On the contrary, being 
 common carriers, and so paid to protect and carry the passengers, if, in case of 
 a wreck, it becomes necessary, in order to save any of those on board, that 
 others should be sacrificed, the seamen, beyond the number necessary to navigate 
 the boat, in no circumstances can claim exemption from the common lot of the 
 passengers.^ 
 
 §9. Authority of Master of Vessel over Passenger. — The master of a 
 vessel has absolute control over his passengers in all that is necessary for good 
 order or the safety of the passengers, crew, or vessel.* The passenger is bound 
 to obey all reasonable orders of the captain. If a passenger misconducts him- 
 self, he may be deprived of the accommodations which he has before enjoyed, 
 or he may be imprisoned or put in irons. But the power of the captain is 
 limited to the necessities of the case. It would not be sufficient to justify the 
 captain in putting a passenger in irons, that he suspected that a mutiny might be 
 caused by language of the passenger ; but he must show that he had reasonable 
 cause to believe it.^ In an emergency, the passenger may be compelled to assist 
 in working the ship ; and in case of an anticipated attack from enemies, may be 
 assigned to a position to assist in its defence. But on his refusal to obey, undue, 
 excessive, or cruel punishment may not be inflicted upon him.® 
 
 § 10. Right of Passengers to Salvage. — While it is the duty of the passenger, 
 in cases of emergency, to assist in the preservation and defence of the ship so 
 
 1 Nieto V. Clark, 1 Cliff. 145; Pendleton «. soon found themselves In imminent peril 
 Kinsley, 3 Cliff. 416, ante, p. 352; Smith v. About ten o'clock on the night after the 
 Wilson, 31 How. Pr. 272; McGuire v. The disaster to the ship, without casting lots, 
 Golden Gate, 1 McAU. 104. the defendant and the rest of the crew began 
 - Keene v. Lizardi, 5 La. 431. to throw some of the passengers overboard, 
 3 United States v. Holmes, 1 Wall. jr. 1. and did not cease until they had thus dis- 
 This was a case of an indictment for com- posed of fourteen male passengers. Not 
 mittiug manslaughter on the high seas. A one of the crew was cast over. It seems 
 ship, when distant two hundred and fifty that the mate gave the ovder to begin the 
 miles from land, struck an iceberg, and be- work of destruction. The passengers were 
 gan to fill so rapidly that it was evident not consulted in the matter. One asked that 
 she must soon go down. In escaping from lots be drawn, but no attention was paid to 
 the vessel, the first mate (the defendant), his request, and he was sacrificed. The sur- 
 seven other seamen, and thirty-two passeu- vivors, with the exception of two women, 
 gers got into the long-boat. The captain, who seemed to have jumped overboard, 
 with others of the crew and one passen- were picked up by a passing vessel. The 
 ger, got into the jolly-boat. On the fol- court, on the trial of the case, gave in his 
 lowing morning, the captain, about to part charge the principle stated in the text, and 
 company witli the long-boat, gave its crew the defendant was found guilty of man- 
 several directions, and enjoined upon them slaughter. 
 
 to obey all the orders of the mate as they * Chamberlain v. Chandler, ante, p. 459. 
 
 would obey his, the captain's, which they * King v. Franklin, 1 Fost. & Fin. 360. 
 
 promised to do. On account of rain and the « Boyce v. Bayliffe, 1 Camp. 58. 
 leaking of the long-boat, those on board
 
 LOSS OF BAGGAGE. 471 
 
 General Rules Apply. 
 
 long as he remains on board, yet he may abandon the ship at any time he has an 
 opportunity. If he elects to remain with the ship after such an opportunity 
 presents itself, he is entitled to pay for services rendered by him in saving the 
 ship. Thus, where a ship, being in danger, and the captain and part of the crew 
 having abandoned her, a passenger, at the request of the rest of the crew, took 
 command and brought her safely into port, it was held that the passenger was 
 entitled to sue the owner for salvage. ^ 
 
 § 11. Baggage of Passengers by Water. — The general rules in respect to 
 baggage, applicable to carriers by land, we shall elsewhere discuss.^ They apply 
 equally to carriers by water. Vessels engaged in carrying passengers are respon- 
 sible for loss or damage to baggage while on board, after it has been placed in the 
 custody of the officer whose duty it is to take care of it.^ The money paid for his 
 passage constitutes the consideration for the safe-keeping and transportation of 
 the passenger's baggage. If, therefore, a passenger deposits a trunk or other 
 article of ordinary baggage with a carrier, it requires no further consideration 
 to support the obligation to deliver it at the passenger's destination.* But if 
 unaccompanied by the passenger, it is subject to the principles of law gov- 
 erning the reception, transportation, and delivery of freight. A person in- 
 tending to take passage on a steamboat brought his trunk on board and put 
 it in the usual place for baggage, but did not deliver it to any one. It appeared 
 that receipts were not usually given for baggage, and that there was no 
 one whose particular business it was to receive baggage from passengers. 
 Through mistake, he did not take passage, and the trunk was lost. It was held 
 that, as he did not take passage, any custom which prevailed as to allowing pas- 
 sengers to deposit their baggage at a particular place without being receipted 
 for, which might be held a delivery to the carrier of baggage, would not be a 
 delivery of the trunk in question; because, not having taken passage, the plaintiff 
 must show such a delivery of it to the carrier as would be necessary in the case 
 of other freight.^ 
 
 The carrier may contract with the passenger not to be liable for the loss of 
 his baggage unless a receipt or bill of lading is given. In such a case, if the 
 passenger neglects to take a receipt or bill of lading therefor, and the baggage 
 is lost, he cannot recover for the loss.® The master of a ship has a lien on the 
 passenger's baggage for his passage-mouey.' If a passenger does not accom 
 pany his baggage, and the baggage is received by the carrier, he may claim com- 
 pensation in advance, or may postpone his claim till the delivery, and rely on his 
 lien or on the personal responsibility of the owner ; in either of which cases 
 the carrier is responsible for the safe-keeping and delivery of the baggage.^ 
 
 On the arrival of the vessel at her port of destination, the passenger should 
 within a reasonable time demand his baggage. What is a reasonable time is a 
 question which the facts in each case must determine. To go to a hotel in the 
 vicinity of a steamboat-landing and send a porter for baggage has been held not 
 
 » Newman v. Walters, 3 Bos. & Pul. 612. * The Elvira Harbeck, 2 Blatchf. 336. 
 
 And see The Steamer Merrimac, 1 Ben. 201 ; ^ Wright v. Caldwell, 3 Mich. 51. 
 
 «. c. 1 Ben. 6S. But see The Vrede, 1 Lush. « Wiltoii v. Atlantic etc. Nav. Co., 10 C. B. 
 
 322. (N. 8.) 453. 
 
 * Post, Chap. XVI. ' Wo:f v. Summers, 2 Camp. 031. 
 
 » Moore V. Evening Star, 20 La. An. 402. f The Elvira Harbeck, 2 IJIatchf. 336
 
 472 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 to be an nnreasonable delay ; * and in a case where the passenger was put off at 
 quarantine, and the vessel continued to her port of destination, a delay of sev- 
 eral days in calling for the baggage was held not to be unreasonable. ^ 
 
 A carrier of passengers at sea may require that portion of the baggage not 
 necessary for daily use to be deposited in any suitable place which he may 
 designate. If the passenger prefers to take charge of his own baggage, he must 
 assume the risk of its loss. A steerage-passenger who took his trunk into the 
 steerage with him, placed it under his bed and fastened it with ropes to his 
 berth, it was held, could not recover for its loss wliere there was no negligence 
 shown on the part of the carrier.^ But even where the passenger retains control 
 of his baggage, if the carrier is negligent, whereby the baggage is lost, he will 
 be liable.* 
 
 What constitutes baggage, we shall consider in another place .^ It has been 
 held that the bedding of a steerage-passenger, who is bound to provide his own 
 bedding for the voyage, constitutes a part of his ordinary baggage. ^ 
 
 § 12. Injuries to Passengers getting on or off of a Vessel. — The owners of 
 vessels carrying passengers are bound to exercise the utmost diligence an&l the 
 employment of every means in their power to insure the safety of passengers. 
 They must exercise diligence not only in regard to the construction of their 
 vessels, and the management of them after passengers have come on board, but 
 also in providing proper means of approaching them, of ascending to and 
 descending from them.' Passengers have the right to require to be set on shore 
 safely. The evidence in a case showed that a passenger while disembarking was 
 walking along a stage which, on account of the high water, presented a very 
 considerable declivity from the boat to the shore ; that when a short distance 
 from the land, a barrel of flour then undor the guidance of a deck-hand got 
 loose from his hold, or was purposely let go, and rolled down upon him, break- 
 ing one of his legs and otherwise injuring him. There was some evidence that 
 after the barrel was let loose some one called "Look out," and one witness was 
 sure that the passenger had time to jump from one stage to another. But the 
 court said there should be no necessity for passengers disembarking to " look 
 out," or to jump from one stage to another in order to save life or limb, and hek^ 
 that the evidence was satisfactory that the injury received by the plaintiff wa- 
 the result of a reckless disregard of his safety as a passenger, and without con- 
 tributory negligence on his part.^ 
 
 If the passenger-carrier cannot maintain an absolute barrier against danger t(>^ 
 his passengers while disembarking, it is his next duty to warn them of it ; and il 
 he omits such warning, he will be liable for any injury caused by its omission. 
 If the passenger in such a case disregards the warning, he takes the risk of 
 injury on himself, and so exonerates the carrier.* The defendants, a dock com- 
 
 1 Nevins v. Bay State Steamboat Co., 4 * pos<, Chap. XVI. 
 
 Bosw. 225. '^ Hirschsohn v. Hamburgh etc. Packet Co., 
 
 2 Gilhooly v. New York etc. Nav. Co., 1 2 Jones & 8p. 521. 
 
 Daly, 197. ' John v. Bacon, L. R. 5 C. P. 437. 
 
 3 Cohen v. Frost, 2 Duer, 335. See also s julien v. Str. Wade Hampton, 27 La. An. 
 Clark V. Burns, 118 Mass. 275. 377. See also Keokuk etc. Packet Co. ». 
 
 * American Steamship Co. v. Bryan, 83 Pa. True, 88 111. 608. 
 St. 446. 8 Brockway v. Lascala, 1 Edm. 135.
 
 EMBAKKING AND DISEMBARKING. AT6 
 
 Carrier must provide Facilities. 
 
 pany, provided gangways from the shore to the ships lying in their dock, the 
 gangways being made of materials belonging to the defendants and managed by 
 their servants. The plaintiff went on board a ship in the dock, at the invitation 
 of one of the ship's officers, and while he was on board, the defendants' ser- 
 vants, for the purpose of the business of the dock, moved the gangway so that it 
 was to their knowledge insecure. The plaintiff, without any warning from the 
 defendants' servants, and iu ignorance of its insecurity, returned along it to the 
 shore ; the gangway gave way, and he was injured. It was held that the plaintiff 
 was entitled to recover damages from the defendants for the injuries he received.' 
 
 But the duty to provide safe means for passengers getting on board of a 
 vessel does not exist at such times as he is not ready to receive them, and where 
 there is no contract or usage requiring him to be in readiness. Thus, a vessel 
 was Ijing alongside a wharf of a railroad company, where she had gone to re- 
 ceive her cargo. There were no means devised for the reception of passengers, 
 nor was it the custom of vessels to receive passengers there ; but, on the con- 
 trary, vessels of that class had their passengers conveyed to them by means of 
 wherries or tugs. A passenger attempted to board the vessel from this wharf 
 by climbing up the timbers of the wharf, and thence to the vessel by a gangway, 
 which was very narrow, and, by his own awkwarcbiess, stumbled and fell. It 
 was held that he was guilty of contributory negligence, and could not recover 
 damages for the injuries thereby received. '■' 
 
 Evidence of the means used on other vessels, and the opinion of experts as to 
 the excellence of those used upon the vessel where the accident occurred, will 
 be received to show the exercise of due care on the part of the owners of the 
 vessel where an injury occurs by reason of the alleged imperfection of the means 
 afforded passengers to embark or disembark. It appeared that the plaintiff, a 
 passenger on the defendant's boat, slipped and fell down the stairway of the 
 vessel as she was disembarking, and that upon each step of the stairway of 
 the boat was a brass plate which was corrugated except where it turned over 
 the edge of the step, this being smooth and slippery. The plaintiff claimed that 
 the placing of this plate upon the stairway was negligence on the part of the 
 owners of the vessel. As it was shown that the stairs were finished in the 
 same manner as upon the best river-boats and upon American sea-going steam- 
 ers; that the boat had been in use a year, and had carried, on an average, a 
 thousand passengers a day, and no injury of the kind had ever before occurred ; 
 and sevei'al experts had testified that this mode of covering stairs was the best 
 in use, — it was held that the evidence failed to show negligence on the part of 
 the defendant, and that a refusal to nonsuit the plaintiff was error.^ 
 
 Where a steamboat lands at a place, to remain there for two hours, and puts 
 out its staging to enal)le persons to get on and off the boat, it is not reasonable 
 to hold that a passenger to a point further on should remain on board all the 
 
 1 Smith V. London etc. Docks Co., L. R. 3 on the part of owners of vessels in the cou- 
 C. P. 326. See also John v. Bacon, L. R. 5 C. struction of the means used for the ingress 
 P. 437. and egress of passengers, see Cleveland v. 
 
 2 The Ship Anglo-Norman, 4 Sawyer, 185. New Jersey SteamboatCo., 68 N. Y. 306 (over- 
 •' Crocheron r. Nortli Shore etc. Ferry Co., ruling s. c. ."j Hun, ,523) ; Dougan v. Champ- 
 
 56 N. Y. 656 (reversing s. c. 1 Thomp. & C. lain Transp. Co., 56N. Y. 1. See also Grieva 
 446). See also Grafter v. Metropolitan R. Co., v. Ontario etc. Steamboat Co., 4 Upper Can- 
 ante, p. 88. For cases of alleged negligence ada C. P. 387.
 
 474 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 time of the stay; and by attempting to go on shore, observing due prudence and 
 care, lie will not be guilty of any wrong or negligence depriving him of a right 
 of recovery for a personal injury carelessly or recklessly inflicted on him by the 
 employees of the boat.' 
 
 § 13. Rights of Passengers inter se to Berttis on Steamboats. — In an 
 action in which one of the questions between the parties was whether the 
 defendant was justified in expelling the plaintiff from a berth in a steamer, it 
 was proved that the plaintiff placed his coat upon the berth while it was vacant, 
 afterwards applied at the office of the company to which the steamer belonged, 
 for the purpose of engaging the berth, and caused the company's agent or clerk 
 then in attendance at the office to enter his (the plaintiff's) name on the way-bill 
 opposite the number of the berth, but that, the defendant having also applied 
 for the same berth, another agent or clerk of the company altered the way-bill 
 by inserting the defendant's name opposite the berth and allotting another one 
 to the plaintiff, and that the plaintiff, upon returning to the berth in dispute, 
 after the steamer had started, found the defendant's servant at the door, w'ho 
 refused to allow him to enter. The plaintiff afterwards entered the berth, and 
 was removed by the defendant. Evidence was also given that, according to 
 the usage on board the steamer, the rights of the passengers inter se to berths 
 during the voyage were to be determined by the way-bill as finally settled and 
 sent on board, and that disputes during the voyage with respect to passengers' 
 accommodation should be decided by the captain or steward. It was held that 
 the plaintiff was not entitled to a direction that he was in possession of the 
 berth in dispute ; that the way-bill as finally settled and delivered to the officers 
 on board determined the right to the berth as between the plaintiff and the 
 defendant; and that the jury having found that the way-bill, as finally settled 
 for the purpose of the voyage, allotted the berth to the defendant, and that the 
 defendant was in possession thereof at the time of the alleged assault, he was 
 justified in removing the plaintiff, without usiug unnecessary violence, upon his 
 refusal to leave the berth. ^ 
 
 § 14. Duty of Carrier as affected by Quarantine. — A voyage from one sea- 
 port to another is not completed at the quarantine of the port of destination; 
 and unless excused by special agreement, or by the health-laws preventing inter- 
 course with the city, the vessel is bound to carry a passenger and his baggage 
 to the point agreed on.' If, on the arrival at port, the city authorities find it 
 necessary, in order to prevent the spreading of a contagious disease which exists 
 on board of a vessel, to have the sick passengers sent to the hospital to be 
 treated, the owners of the vessel cannot be made liable for the expenses thereby 
 incurred.* 
 
 § 15. Limitation of Liability by English Merchants' Shipping Act. — By an 
 English act^ designed to encourage the investment of capital in ships, the lia- 
 
 1 Keokuk etc. Packet Co. v. True, 88 111. 608. t New Orleans v. The Windermere, 12 La. 
 
 - Dysart v. Montgomery, Irish Rep. 8 0. L. An. 84. 
 
 245. » Merchants' Shipping Act, 1854, 17 & 18 
 
 3 Gilhooly v. New York etc. R. Co., 1 Daly, Vict., c. 104; Amendment Act, 1S6'2, 25 & 26 
 
 197. Vict., c. 63.
 
 STATUTES OF THE UNITED STATES. 475 
 
 Historical Sketch, 
 
 bility of owners of ships for damages caused by certain accidents happening to 
 such ships was limited to an aggregate amount not exceeding £15 for each ton 
 of their ship's tonnage. It appeared in a case where a railroad company also 
 the owner of a ship had contracted to carry a passenger and his luggage from 
 London to Guernsey partly by rail and partly by water, that the vessel upon 
 which the passenger and his luggage were being carried sunk. The passenger 
 brought an action for the loss of his luggage and for delay. In an action under 
 the statute to restrain the suits thus brought and to have the Court of Chancery 
 distribute amounts due the several parties injured by the sinking of the vessel, 
 it was contended that, as the passenger had bought his ticket in London, it was 
 a contract of carriage to which the Merchants' Shipping Act did not apply ; that 
 the ticket in question was bought from a railroad company, with whom the con- 
 tract to carry was made, while the act limiting the liability only applied to ship- 
 owners ; but the court held otherwise, and the actions were restrained, except 
 those for delay.i 
 
 § Ifi. Parties to Action in Case of Injury to Passenger from Collision of 
 Vessels. — Where a collision between two vessels results from the fault of both, 
 a passenger on one of them sustaining injuries from the collision may recover 
 damages against both vessels, and they may be proceeded against in the same 
 libel. The damages recovered in such a case may be apportioned by the decree 
 equally between the two vessels ; and at the same time the right may be reserved 
 to the libellant to collect the entire amount of either of them, in case of the ina- 
 bility of the other to respond for her portion. ^ 
 
 § 17. United States Statutes affecting Carriers of Passengers by Water. — 
 (1.) Historical Sketch of Statutes. — It is well understood that the exclusive 
 power has been conferred upon Congress in respect to the regulation of com- 
 merce between the several States. Beyond all doubt, the power as conferred 
 includes navigation as Avell as traffic, and it is equally well settled that it extends 
 to ships and vessels exclusively employed in conveying passengers as well as 
 those engaged in transporting goods and merchandise.^ Congress has at various 
 times exercised its prerogative in this particular. In 1838 it passed an act '* to 
 provide for the better security of the lives of passengers on board of vessels 
 propelled in whole or in part by steam." * This act provided for the appointment 
 of inspectors whose duty it was at stated intervals to examine the hull, boilers, 
 and machinery of vessels within the act. It further directed the employment 
 of a competent number of experienced and skilful engineers, and prescribed 
 rules for the operation of such vessels, made provision for life-saving apparatus 
 proportioned to the tonnage of vessels, and adopted measures for the control 
 of fires by requiring each vessel to provide as a part of its machinery flre- 
 
 1 London etc. R. Co. v. James, L. R. 8 Ch. Transp. Co., 56 X. Y. 1; City of Brussels, 6 
 241. Ben. 370; Stuamboat Ottawa, 1 Newb. Adm. 
 
 2 The Washington and the Gregory, 9 536; Swarthoutj;. New Jersey Steamboat Co., 
 Wall. 513 (affirming 8. c. 2 Ben. 226). See 48 N. Y. 200. 
 
 also The Milan, tush. 388. For cases decid- " Per Clifford, J., in Hall v. De Cuir, 95 
 
 ing the question of jurisdiction of admiralty U. S. 485, 491, citing Gibbons v. Ogden, 9 
 
 courts, see Chisholm v. Northern Transp. Wlieat. 1. 
 
 Co., 61 Barb. 363; Dougan v. Champlain ' Act 1838, chap. 191, 5 Stats, at Large, 304.
 
 476 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 extinguishing apparatus. Penalties were provided for violation of the provi- 
 sions of the act, and the officers and employees whose negligence or misconduct 
 resulted in the loss of lives of passengers were declared guilty of manslaughter, 
 punishable, npou conviction in any Circuit Court of the United States, by con- 
 finement at hard labor for a period not exceeding ten years. And finally, it 
 enacted that in suits against the proprietors of steamboats for injuries to the 
 person or property from the bursting of the boiler of any steamboat, or the 
 collapse of a flue, or other injurious escape of steam, the fact of such accident 
 should be taken as full jmma facie evidence sufficient to charge the defendant 
 vnth negligence, until the defendant should show that there was no negligence on 
 his part or that of his employees. 
 
 The foregoing act was followed by another in 184:3, ^ which modified the effect 
 of the former act in some few details. In 1852,2 an act was passed " to pi'ovide 
 for the better secui'ity of the lives of passengers on board of vessels propelled 
 in whole or in part by steam." By this act the policy of the previous acts was 
 greatly extended, and the result was quite an elaborate set of provisions having 
 in view the purpose of the title. This was followed by brief resolutions upon 
 this matter,^ and in 1855* by "an act to regulate the carriage of paiisengers in 
 steamships and other vessels," and by other acts furthering the purposes of 
 preceding acts,^ until, in 1871,^ an act was passed consolidating the provisions 
 of previous acts, and expressly repealing certain other acts.'' 
 
 (2.) Condensed Statement of the Provisions of the Act of February 2S, 1871. — 
 This act provides for the appointment of a supervising inspector-geuei-al under 
 the direction of the secretary of the treasury, to superiutend the administration 
 of the steamboat-inspection laws, and, among other things, preside at the annual 
 meetings of a board of ten supervising inspectors. The supervising inspectors 
 
 1 Act 1843, chap. 94, 5 U. S. Stats, at Large, they meant to reside, together with the 
 G26. number dying upon the voyage. This act, 
 
 2 Act 1852, chap. 106, 10 U. S. Stats, at and later acts passed upon the same subject 
 Large, 61. (Act 1847, chap. 16, 9 U. S. Stats, at Large, 
 
 ^ Resolution of Jan. 7, 1853, No. 5, 10 127; Act 1847, chap. 34, 9 U. S. Stats, at 
 
 U. S. Stats, at Large, 261; Resolution of Large, 149; Act 1848, chap. 7, 9 U. S. Stats. 
 
 March 3, 1853, No. 13, 10 U. S. Stats, at Large, at Large, 210; Act 1848, chap. 41, 9 U. S. 
 
 262. Stats, at Large, 220; Act 1849, chap. Ill, 9 U. 
 
 * Act 1855, chap. 213; 10 U. S. Stats, at S. Stats, at Large, 399), were all expressly 
 
 Large, 715. It will be noticed that this act repealed by the act of 1855. 
 does not relate to steam-vessels exclusively, ^ Act 1864, chap. 113, 13 U. S. Stats, at 
 
 but to the carriage of passengers upon mer- Large, 120; Act 1864, chap. 249, 13 U. S. Stats. 
 
 chant vessels as well. The first act upon at Large, 390; Act 1865, chap. 94, 13 U. S. 
 
 this subject was passed in 1819. 3 U. S. Stats, at Large, 514; Act 1866, chap. 234, 14 
 
 Stats, at Large, 488, chap. 46. This act U. S. Stats, at Large, 227. 
 limited the number of passengers to be « Act 1871, chap. 100, 16 U. S. Stats, at 
 
 carried in proportion to the ship's tonnage, Large, 440. See also U. S. Key. Stats., §§ 
 
 and prescribed forfeitures for the carriage 4399-4500. 
 
 of passengers in excess of the ratio of two ■ Act 1838, chap. 191, 5 U. S. Stats, at 
 
 for every five tons ; the amount of stores to Large, 304 ; Act 1843, chap. 94, 5 U. S. Stats. 
 
 be shipped for each passenger, and a pen- at Large, 626; Act 1852, chap. 106, 10 U. S. 
 
 alty for putting passengers upon a short Stats, at Large, 61; Act 1864, chap. 78,13 U. 
 
 allowance; that a list of all the passengers S. Stats, at Large, 63; Act 1864, chap. 113, 13 
 
 be delivered to the collector, etc., showing U. S. Stats, at Large, 120; Act 1865, chap. 94, 
 
 the age, sex, and occupation of passengers, 13 U. S. Stats, at Large, 514 ; Act 1866, chap, 
 
 the country to which they belonged, where 234, 14 U. S. Stats, at Large, 227.
 
 STATUTES OF THE UNITED STATES. 477 
 
 Act of February 28, 1871. 
 
 have control of local boards of inspectors •within their several districts, and it is 
 the business of the former to examine into the doings of the latter, visit any 
 vessels licensed under the act, when they shall deem fit, to ascertain whether 
 the statutory provisions are observed by local inspectors and the officers of the 
 vessels. All vessels propelled in whole or in part by steam, navigating any 
 waters of the United States which are common highways of commerce or open 
 to general or competitive navigation, excepting public vessels of the United 
 States, vessels of other countries, and boats propelled in whole or in part by 
 steam for navigating canals, are declared to be subject to the provisions of the 
 act. 
 
 It is the duty of the board of supervising inspectors before mentioned to 
 establish regulations to be observed by all steam-vessels in passing each other. 
 The act provides for the appointment of inspectors of hulls and boilers in cer- 
 tain collection districts named. It is the duty of these officers to make at least 
 an annual inspection of the hulls and boilers of vessels within their districts, 
 satisfy themselves that the vessel is suitable for the service in which she is to be 
 employed ; that there are suitable accommodations for passengers and the crew ; 
 that all the requirements of the law in regard to fires, boats, pumps, hose, life- 
 preservers, floats, anchors, cables, and other things are faithfully complied with. 
 The boilers are to be subjected to hydrostatic pressure, and the inspectors are to 
 satisfy themselves in a great number of stated particulars that the vessel may be 
 used in the service proposed, without peril to life. Having finished their 
 inspection, it is the duty of these officers, if the result is satisfactory, to make 
 and subscribe and verify by oath a certificate to this effect to the collector or 
 other chief officer of the customs of the district, two copies of which shall be 
 placed in conspicuous places in the vessel, where they will be most likely to be 
 observed by passengers and others, and there kept at all times framed under 
 glass. 
 
 The act proceeds to provide penalties for the carriage of gunpowder upon 
 vessels engaged in carrying passengers, without the authority of a certificate of 
 the inspectors for carrying it in a specified manner ; for the improper and unlaw- 
 ful construction of boilers ; for counterfeiting the marks and stamps for boiler- 
 iron or steel plates required by the act ; for intentionally loading or obstructing 
 the safety-valve of a boiler, or employing any device whereby the boiler is sub- 
 jected to a greater pressure than the amount allowed; for intentionally derang- 
 ing or hindering the operation of any machinery or device employed to denote 
 the state of the water or steam in the boiler, or to give warning of approaching 
 danger ; or for intentionally permitting the water to fall below the prescribed 
 low-water line of the boiler. 
 
 Provision is also made for licensing and classifying the masters, chief mates, 
 engineers, and pilots of all steam-vessels by the local inspectors, and for the 
 revocation or suspension of such license upon satisfactory proof of the unfitness 
 of the licensee to act under such authority. No person is permitted to serve as 
 master, chief mate, engineer, or pilot on any steamer, who is not so licensed by 
 the inspectors. 
 
 It is also enacted that no steamer carrying passengers is permitted to depart 
 from any port unless having a full complement of licensed officers and a full 
 crew; that no greater number of passengers shall be taken on board than is
 
 478 CARKIEKS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 stated in the certificate of inspection; that the master of every passenger- 
 steamer shall keep a correct list of all the passengers received and delivered 
 from day to day, noting tlie places where received and where landed; that 
 every steamer carrying passengers or freight shall be supplied with stated means 
 for the prevention of and exlingaishing of fire ; that certain enumerated danger- 
 ous articles shall neither be carried as freight nor used as stores on passenger- 
 steamers, and others of a like character to be carried only upon certain condi- 
 tions; that life-preservers or floats shall be provided in numbers equal to the 
 number of passengers which the steamer is entitled to carry ; that convenient 
 means of exit shall be provided for passengers, which shall not be interfered 
 with by the stowage of freight ; that life-boats, metallic and otherwise, shall be 
 provided according to the needs of each vessel. 
 
 Finally, it is provided that whenever damage is sustained by any passenger or 
 his baggage, from explosion, fire, collision, or other cause, the master and the 
 owner of such vessel, or either of them, and the vessel, shall be liable to each and 
 every person so injured, to the full amount of damage, if it happens through any 
 neglect or failure to comply with the provisions of the act, or through known 
 defects or imperfections of the steaming apparatus or of the hull ; that any per- 
 son sustaining loss or injury through the carelessness, negligence, or wilful 
 misconduct of any master, mate, engineer, or pilot, or his neglect or refusal to 
 obey the laws governing the navigation of such steamers, naay sue such master, 
 mate, engineer, or pilot, and recover damages for any such injury caused by 
 him. 
 
 All of the requirements of this act to which we have thus briefly alluded are 
 set out with many elaborate details, together with ancillary and other provisions 
 which we have not space <to notice. 
 
 (3.) Condensed Statement of the Provisions of the Act of March 3, 1855. — 
 It will be observed that of all the acts mentioned in the historical sketch at the 
 beginning of this section, that of the year 1855 ^ is the only one not expressly 
 repealed by the act of 1871, to which we have just given extended notice. The 
 provisions of this act are incorporated in the Revised Statu tes,^ to which brief 
 allusion will be made. This act provides that no master of any vessel owned 
 in whole or in part by a citizen of the United States, or by a citizen of a foreign 
 country, shall take on board at any foreign port or place, other than foreign con- 
 tiguous territory of the United States, passengers otherwise than in accordance 
 with the provisions of the act, with intent to bring such passengers to the United 
 States. The provisions of the act specify that the number of passengers carried 
 shall be in a stated proportion to the tonnage of the vessel ; that each passenger 
 shall be entitled to a certain amount of shiproom for himself and personal bag- 
 gage, which in no case shall be occupied by stores or other goods ; that berths 
 of given dimensions shall be constructed; certain provisions shall be made for 
 ventilation of that part of the vessel occupied by those other than cabin pas- 
 sengers ; that a cooking-range shall be constructed in size proportioned to the 
 number of passengers carried; that supplies of a kind and quantity named, and 
 of good quality, shall be laid in for the consumption of passengers; that the 
 food of the passengers shall be properly cooked daily, and served at regular 
 
 ' Act 1855, chap. 213, 10 U. S. Stats, at Large, 715. « 5§ 425-2-4272.
 
 STATUTES OF THE UNITED STATES. 47i^ 
 
 Act of March 3, 1855. 
 
 hours ; that in case the passengers are put upon short allowance by reason of a 
 failure to comply with the provisions of the act, the master or owner of the vessel 
 shall pay to each of such passengers the sura of .§3 for each day while upon such 
 short allowance ; that the master of the vessel may maintain good discipline and 
 such habits of cleanliness among passengers as will tend to the preservation of 
 health, and where the apartments of the passengers become foul from any cause, 
 he is charged with the duty of purifying them with disinfectants. 
 
 As to vessels bound from any port in the United States to any port or place 
 in the Pacific Ocean or on its tributaries, or from any such port or place to any 
 port in the United States on the Atlantic or its tributaries, including vessels 
 whose passengers, or any part of them, shall be bound from or to any of those 
 ports or places by waj- of any overland route through Mexico or Central Amer- 
 ica, — these are declared subject to the foregoing provisions, except so much 
 as regards food and water, as to which the master is not obliged to lay in any 
 specified supply, but to furnish "a sufficient supply of good and wholesome 
 food, properly cooked," under the same penalty for putting passengers upon a 
 short allowance. 
 
 By the same act it is made the duty of the master of any vessel arriving in 
 the United States from any foreign place whatever to deliver to the collector of 
 the district in which it arrives a list of all the passengers taken on board, with 
 stated queries as to each passenger answered, and further to set forth the num- 
 ber which have died on the voyage, which list shall be verified by the oath of 
 such oflacer. For each of such passengers as have died on the voj'age by natural 
 disease, being above the age of eight years, the master, owner, or consignee 
 is bound to pay the collector the sum of SIO, which money is devoted to the 
 care and protection of sick, indigent, or destitute emigrants. 
 
 Having already exceeded the space which we had intended to devote to this 
 subject, we will pass to a review of the decisions which have been rendered 
 upon the statutes to which we have alluded in the foregoing. In another con- 
 nection we found it convenient to briefly notice certain of these statutes, and to 
 avoid iteration will not discuss the effect of cases there stated. i 
 
 (4.) Review of Cases construing the foregoing Acts. — (a.) The Act of March 2 
 1819. — Under the act of 1819,* a vessel was deemed forfeited to the United 
 States if the number of persons transported exceeded the proportion of two to 
 every five tons of the vessel's tonnage, by twenty. In estimating the number of 
 passengers under the act, no deduction was made for children or persons not 
 paying ; but those employed in navigating the vessel were not included.' 
 
 (p.) The Act of March 3, 1855. — The provisions of the second section of the 
 act of 1855,* in relation to the number and arrangement of berths, have been con- 
 strued as having no application to steamships.* Under this same statute,* a 
 mate who is appointed master at a foreign port, and leaves the port with intent 
 to bring certain passengers to the United States, and does bring them in excess 
 
 1 ^n<e, p. 222, § U. 1847, chap. 16, 9 U. S. Stats, at Large ^ 
 
 2 Chap. 46, § 2, 3 U. S. Stats, at Large, 488. 127). 
 
 3 United States v. The Louisa Harbara, * Chap. 213, 10 U. S. Stats, at Large, 715. 
 Gilp. 332. See also United States v. The '' The Manhattan, 2 Ben. 88; «. c. 7 Int. 
 Neurea, 19 How. 92 (construing the act of Rev. Roc. 28. « 8 !•
 
 480 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 of the number permitted by that statute, is liable to the fine imposed on masters, 
 though the agreement with the passengers was made bj- the former master, if the 
 defendant had knowledge of the facts, and opportunity to annul the illegal con- 
 tract before leaving the foreign port.' But the mere intention to violate the law, 
 formed in a foreign country, and not completed by illegal importation, is insuffi- 
 cient to produce conviction. ^ 
 
 (c.) The Act of July 7, 1838, and August 30, 1852. — It was stated by Mr. 
 Justice Nelson, in a leading case, that it was gross negligence ^ not to comply 
 with the provision of the act of 1838* requiring steam-vessels to provide as a 
 part of their necessaiy furniture a suction-hose and fire-engine, and hose suit- 
 able to be worked in case of tire, and to carry the same on every trip in good 
 order ; and further, that iron rods or chains should be employed and used in the 
 navigation of steamboats, instead of wheel or tiller ropes. 
 
 The provision of this act^ making the bursting of a boiler, or other injurious 
 ■escape of steam, prima facie evidence of negligence on the part of the defendant, 
 in an action for such injuries, has received the attention of the United States 
 courts in two cases. In Steamboat New World v. King,^ an explosion took 
 place upon one of two boats engaged in a race for patronage. Curtis, J., said 
 in this case : " When a disastrous explosion has occurred in such a strife, this 
 court cannot treat the evidence of those engaged in it, and prima facie respon- 
 sible for its consequences, as sufficient to disprove their own negligence, which 
 the law presumes."' In another case. Chase, C. J., said upon this point: " To 
 repel the inference of negligence in this case, then, there must be such clear 
 proof of care and vigilance as will exclude any reasonable belief that there was 
 any negligence whatever on the part of the owners, or any of their employees, 
 which contributed to the explosion."^ 
 
 The provision under discussion was not impliedly repealed by the thirtieth 
 section of the act of 1852.* The averment of a strict compliance on the part of 
 the proprietors of steamboats with all the requirements of the act, without 
 averring care and denying negligence, is not a good defence to the allegation of 
 loss by an explosion caused by negligence.'" The act of 1852 did not exempt the 
 owners and master of a steam-vessel, and the vessel, from liability for injuries 
 caused by the negligence of its pilot or engineer, but made them liable for all 
 damages sustained by a passenger or his baggage from any neglect to comply 
 
 1 United States v. Morton, 1 Low. 179. 8 The Highland Light, Chase's Dec 150, 
 
 2 United States v. The Anna, 2 Am. L. Reg. 153. 
 
 421. 9 Chap. 106, 10 U. S. Stats, at Large, 61. 
 
 3 New Jersey Steam Nav. Co. v. Mer- Curran r. Cheeseman, 1 Cin. Superior Ct. 52; 
 chants' Bank, 6 How. 344, 385. To the same Steamboat New World v. King, 16 How. 469, 
 effect is the frequently quoted language of ante, p. 175. The provisions of the thirtieth 
 Mr. Justice Grier in the leading case of section of the act of 1S52 are almost iden- 
 Phila. etc. R. Co. v. Derby, 14 How. 468, 486; tical with those of the forty-third section of 
 3 c. ante, p. 31. See also the approval of the act of 1871 (U. S. Rev. Stats., § 4493), 
 Mr. Justice Curtis, in Steamboat New World which is set out at length in a previous 
 V. King, 16 How. 469, 474, ante, p. 175. chapter of this book. See p. 223, ante. 
 
 * Chap.. 191, § 9, 5 U. S. Stats, at Large, 304, w Curran v. Cheeseraan, supra; Caldwell 
 
 306. 6 § 13. V. New Jersey Steamboat Co., 47 N. T. 282, 
 
 6 16 How. 469, ante, p. 175, 292 ; CarroU v. Staten Island B. Co., 58 N. Y. 
 
 ' 16 How. 477. 126, 141.
 
 STATUTES OF THE UNITED STATES. 481 
 
 Act of July 4, 1864. 
 
 with the pi'ovisions of the law, uo matter where the fault might lie; and in 
 addition to this remedy, any person injured by the negligence of the pilot or 
 engineer might have his action directly against those officers. ' 
 
 The provision of the act of 1838, '■' requiring steamboats transporting passen- 
 gers to operate under a license for this purpose, was held to have been violated 
 by a propeller (which was usually engaged in and about a harbor as a tug-boat 
 exclusively) carrying passengers for hire upon a single trip, without the authority 
 of such a license. The exception contained in the act of Congress of 1852 ' 
 was held to authorize the carriage of passengers without a license only while 
 employed in the legitimate business of towing, etc. ; but not where the boat 
 leaves that business for the purpose of transporting passengers.* A contrary 
 conclusion was reached in another case.^ 
 
 The penalty provided by the act of 1838 ^ for transporting goods, wares, and 
 merchandise on vessels not inspected was not embraced in the act of 1852.' 
 The whole object and scope of this last act was to provide for the better security 
 of the lives of passengers, and it provided a full and perfect system for the in- 
 spection of the hulls and boilers of vessels propelled in whole or in part by 
 steam, and carrying passengers. Therefore it was held that such a vessel was not 
 liable to the penalty mentioned for transporting goods, wares, and merchandise 
 without inspection of the hull and boilers, the provision of the earlier act in 
 this particular being inconsistent with and repealed, by implication, by the later 
 act.* Neither was a steamboat employed in transporting passengers between 
 ports in the same State liable to the penalty prescribed by the act of 1852, such 
 a vessel being exclusively within and subject to State regulations and control." 
 Steamers used as ferry-boats were in express terms exempted from the operation 
 of the act of 1852. lo 
 
 (d.') The Act of July 4,1864. — The following provision of an act of Con- 
 gress 1' was held to be imperative, and a strict compliance with its demands 
 necessary: "That the secretary of the treasury shall cause to be pi'epared a 
 synopsis of such of the laws relating to the carriage of passengers an,d their 
 safety on vessels propelled in whole or in part by steam as he shall think expe- 
 dient, and have the same printed in convenient form to be framed under glass, 
 
 1 Sherlock v. Ailing, 93 U. S. 99. The 8 United States v. The Sun, 1 Am. L. Reg. 
 
 forty-third section of the act of 1871 {ante, (N. S.) 277. 
 
 p. 223; U. S. Rev. Stats., § 4493) is, as we have » United States v. The Seneca, 1 Am. L. 
 
 previously stated, almost identical with the Reg. (n. s.) 281; United States v. The 
 
 thirtieth section of the act of 1852, and the James Mon-ison, Ncwb. Adm. 241; Uni- 
 
 same construction has been put upon it as ted States v. The William Pope, id. 256; 
 
 upon the latter act in the case just noticed. United States v. The Bright Star, 7 Int. 
 
 Brown v. The D. S. Cage, 1 Woods, 401. Rev. Rec. 179; The Thomas Swan, 6 Ben. 42. 
 
 s § 2. But see The Daniel Ball, 10 Wall. 557; War- 
 
 8 Act 1852, chap. 106, § 42, 10 U. S. Stat-, at ing v. Clark, 5 IIow. 441, 465, per Wayne, J.; 
 
 Large, 61, 75. Bradley v. Northern Transp. Co., 15 Ohio St. 
 
 < United States v. The Echo, 4 Blatchf. 553, 5.57. 
 
 446; 8. c. 20 How. Pr. 517; United States v. "> chap. lOG, § 42, 10 U. S. Stats, at Large, 
 
 The Thomas Swan, 9 Law Rep. (n. s.) 201. 75; Elizabethport etc. Ferry Co. v. United 
 
 s United States v. The Ottawa, Newb. States, 5 Blatchf. 198; The Sylph, 4 Blatchf. 
 
 Adm. .536. See also The Morning Star, 4 24. 
 
 Biss. 62. « § 2. " Act 1861, chap. 249, § 8, 13 U. S. Stats, at 
 
 ' Chap. 100, 10 U. S. Stats, at Large, 6L Large, 390, 391. 
 
 31
 
 482 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 and give to any such vessel two copies, on application of its owner or master, 
 who shall without unnecessary delay have the same framed under glass, and 
 place and keep them in conspicuous places in such vessel," etc. Under this sec- 
 tion it was held to be no defence that the surveyor of the port was not supplied 
 with these documents, wherefore the steamer put out without them, but pro- 
 cured one while upon her trip, which was duly posted up. The owners were 
 bound at their peril to apply for them to the secretary of the treasury ; other- 
 wise, proceeding upon the voyage as they did, the penalty named in the act was 
 incurred. 1 
 
 (e.) The Act of July 25, 1866. — It was provided by the act of 1866," "that 
 cotton, hemp, hay, straw, or other easily ignitible commodity, shall not be carried 
 on the decks or guards of any steamer carrying passengers, except on ferr3'-boats 
 crossing rivers, and then only on the sterns of such boats, unless the same shall 
 be protected by a complete and suitable covering of canvas or other proper mate- 
 rial to prevent ignition from sparks, under a penalty," etc. In a case arising 
 under this provision, it wa.s held that hay in bales, piled up in the engine or deck 
 room, back of the engines, and surrounded and protected by a tier of grain in 
 sacks (made of burlaps, or jute cloth) on each side, and two or more tiers on 
 each end, and extending from the floor to the carlings or ceiling, and stripped 
 with plauk to make the sacks steady, was a sulHcient compliance with this stat- 
 ute.^ 
 
 (/.) The Act of February 28, 1871.— The fourth section of the act of 1871 * 
 provides, among other tlyngs, that no refined petroleum shall be carried as 
 freight on any steamer carrying passengers, with an exception not necessary to 
 notice ; but the section provided no penalty for the violation of the provision. 
 The sixty-eighth section of the act declares that the penalty for the violation of 
 any provision of the act not otherwise specially provided for shall be a fine of 
 .$500, one-half for the use of the informer. These sections alone clearly would 
 not authorize a proceeding in rem. The proper remedy is an action of debt.^ 
 The first section, however, makes provision for the licensing and enrolment of 
 steam-vessels, and concludes, that " if any such vessel shall be navigated with- 
 out complying with the terras of this act, the o'mier or owners tliereof shall 
 forfeit and pay," etc., "for which sum the steamboat or vessel so engaged shall 
 be liable, and may be seized," etc. The remedy contemplated by this section 
 cannot by implication be extended to the fourth section." 
 
 1 The Lewellen, 4 Biss. 156. United States, 13 Wall. 542; Jacob v. TTnited 
 
 2 Act 1866, chap. 234, § 5, 14 U. S. Stats. States, 1 Brocken. 520; Rex v. Robinson, 2 
 at Large, 227. Burr. 803; United States v. Simms, 1 Crauch, 
 
 3 Union Insurance Co. v. Shaw, 2 Dill. 14. 252. 
 
 In this case the point was reaffirmed, as de- ^ United States v. The C. B. Church, 1 
 
 cided by Mr. Justice Catron and District Woods, 275; The J. D. Parker, 23 Int. Rev. 
 
 Judge Wells in this circuit in 1855, to the Rec. 66. To the same effect is The Highland 
 
 elFect that the tenth section of the act of Light, Chase's Dec. 150. See also The Can- 
 
 1S52 (chap. 106, 10 Stats, at Large, 61, 69) had dace, 1 Low. 126, where it is held that § 15 of 
 
 no application to steamboats plying on the the act of 1855 (chap. 213, 10 U. S. Stats, at 
 
 Mississippi River. Large, 715, 720), which enacts "that the 
 
 ■* Act 1S71, chap. 100, 16 U. S. Stats, at amount of the several penalties imposed by 
 
 Large, 440. the foregoing provisions * * * shall be 
 
 = Woods, J., in United States v. The C. B. liens on the vessel or vessels violating these 
 
 Church, 1 Woods, 275, citing StockweU v. provisions," does not apply to the fine im-
 
 STATUTES OF THE UNITED STATES. 
 
 483 
 
 Act of March 3, 1851. 
 
 (5.) Limitation of Cameras Liability by the Act of March 3, 1851. — We have 
 reserved for consideration at this point, and apart from the foregoing, the 
 statute of 1851,' because the object of this statute is essentially unlike that of 
 any of the foregoing which we have noticed. This statute is "An act to limit 
 tlie liability of ship-owners, and for other purposes." Its pi'ovisions are sub- 
 stantially incorporated into the Revised Statutes, and their brevity and importance 
 seem to justify us in setting tliem out at length.^ In the course of his opinion 
 
 posed on the master by § 1 of that act, upon 
 his conviction of a misdemeanor, but only 
 to the civil penalties imposed on owners as 
 well as masters, by §§ 2 and 8 of the act, for 
 a violation of §§ 2, 3, 4, 5, and 7. In United 
 States V. Laurel, Newb. Adm. 269, it was held 
 that the expression in § 2 of the act of 1838 
 (chap. 191, 5 U. S. Stats, at Large, 304), " for 
 which sum or sums the steamboat or vessel 
 so engaged shall be liable," was simply used 
 to give a remedy against the boat by libel, 
 and was not intended to give a lien, ex- 
 pressed or implied. 
 
 1 Chap. 43, 9 U. S. Stats, at Large, 635. 
 
 2 " § 4281. If any shipper of platina, gold, 
 gold-dust, silver bullion, or other precious 
 metals, coins, jewelry, bills of any bank or 
 public body, diamonds or other precious 
 stones, or any gold or silver in a manufac- 
 tured or unmanufactured state, watches, 
 clocks, or time-pieces of any description, 
 trinkets, orders, notes or securities for the 
 payment of money, stamps, maps, writings, 
 title-deeds, printings, engravings, pictures, 
 gold or silver plate or plated articles, glass, 
 china, silks in a manufactured or unmanu- 
 factured state, and whether wrought up or 
 not wrought up with any other material, 
 furs, or lace, or any of them, contained in 
 any parcel or package, or trunk, shall lade 
 the same as freight or baggage, on any 
 vessel, without at the time of such lading 
 giving to the master, clerk, agent, or owner 
 of such vessel receiving the same a written 
 notice of the true character and value 
 thereof, and having the same entered on the 
 bill of lading therefor, the master and owner 
 of such vessel shall not be liable as carriers 
 thereof in any form or manner; nor shall 
 any such master or owner bu li.ible for any 
 such goods beyond the value and according 
 to the character thereof so notified and 
 entered. 
 
 " § 42S2. No owner of any vessel shall be 
 liable to answer for or make good to any 
 person any loss or damage which may hap- 
 pen to any merchandise what.sfiever, which 
 shall be shipped, taken in, or put on board 
 any suc'.i vessel, by reason or by means of 
 •ny lire happening to or on board the vessel. 
 
 unless sueh fire is caused by the design or 
 neglect of such owner. 
 
 " § 4283. The liability of the owner of any 
 vessel, for any embezzlement, loss, or de- 
 struction, by any person, of any property, 
 goods, or merchandise shipped or put on 
 board of such vessel, or for any loss, dam- 
 age, or injury by collision, or for any act, 
 matter, or thing, loss, damage, or forfeiture, 
 done, occasioned, or incurred, without the 
 privity 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. 
 
 " § 42S4. Whenever any such embezzle- 
 ment, loss, or destruction is suffered by sev- 
 eral freighters or owners of goods, wares, 
 merchandise, or any property whatever on 
 t'ae same voyage, and the whole value of the 
 vessel and her freight for the voyage is not 
 eufBcient to make compensation to each of 
 them, they shall receive compensation from 
 the owner of the vessel in proportion to 
 their respective losses; and for that pur- 
 pose the freighters and [ownerl [owners] of 
 the property, and the owner of the vessel, 
 or any of them, may take the appropriate 
 proceedings, in any court, for the purpose 
 of apportioning the sum for which the 
 owner of the vessel may be liable among 
 the parties entitled thereto. 
 
 "§4285. It shall be deemed a sufficient 
 compliance on the part of such owner with 
 the requirements of this title relating to his 
 liability for any embezzlement, loss, or de- 
 struction of any property, goods, or mer- 
 chandise, if he shall transfer his interest in 
 such vessel and freight, for the benefit of 
 such claimants, to a trustee, to be aiipointed 
 by any court of competent jurisdiction, to 
 act as such trustee for the person who may 
 prove to be legally entitled thereto; from 
 and after which transfer all claims and 
 proceedings against the owner shall cease. 
 
 "§4286. The charterer of any vessel, in 
 case he shall man, victual, and navigate 
 such vessel at his own exijcnse, or by his 
 own i)ro(;iirenient, shall be deemed llic 
 owner of sucli vessel williin llie niuauiiig 
 of the provisions of this title relating to the
 
 484 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 in the case of Bailroad Company v. Lockwood,^ Mr. Justice Bradley couciselj' 
 summarized tlie provisions of this act, and concluded by saying: " This seems to 
 be the only important modification of previously existing law on the subject, 
 which in this country has been effected by legislative interference. And by this 
 it is seen that, though intended for the relief of the ship-owner, it still leaves 
 him liable to the extent of his ship and freight for the negligence and miscon- 
 duct of his employees, and liable without limit for his own negligence." ^ 
 
 The policy of this act is explained by Mr. Justice Catron in the leading case 
 of Moore v. American Transportation Company:^ "Our act of Congress," said 
 he, "of March 3, 1851, was passed to put our commercial marine on an equal 
 footing with that of Great Britain; so that the increase of the number of ships, 
 and the navigation of them, might be equally encouraged. That competition with 
 British shipping was the object of Congress, is manifest to my mind from the 
 fact that the provisions of our statutes correspond to British statutes." * 
 
 (a.) Scope of this Act. — One of the first cases arising under this act was 
 that of Moore v. American Transportation Company.^ It was here decided that 
 the navigation of Lake Erie, and also of all the other lakes in connection there- 
 with, is not within the exception to this act, as falling within the words "inland 
 navigation." fi Mr. Justice Catron dissented, but the judgment of the majority 
 of the court in this case has ever since been adhered to as the proper construction 
 of the act.'' 
 
 In Walker v. Transportation Company,^ the terms of the first section ^ of 
 the act came up for construction. The plaintiff shipped a cargo of grain at 
 Chicago, on a vessel belonging to the defendants, to be delivered at Buffalo. 
 The vessel caught fire and the grain was consumed. The company set up as a 
 
 limitation of the liability of the owners of vessel, shall be liable to the United States 
 
 vessels; and such vessel, when so chartered, in a penalty of one thousand dollars. But 
 
 shall be liable in the same manner as if this section shall not apply to any vessel of 
 
 navigated by the owner thereof. any description whatsoever used in rivers or 
 
 " § 4287. Nothing in the five preceding inland navigation, 
 
 sections shall be construed to take away or " § 42i59. The provisions of [this title] the 
 
 alfect the remedy to which any party may seven preceding sections, relating to the 
 
 be entitled against the master, officers, or limitation of the liability of the owners of 
 
 seamen, for or on account of any embezzle- vessels, shall not apply to the owners of any 
 
 ment, injury, loss, or destruction of mer- canal-boat, barge, or lighter, or toanyves- 
 
 chandise or property put on board any sel of any description whatsoever used in 
 
 vessel, or on account of any negligence, rivers or inland navigation." 
 
 fraud, or other malversation of such master, ^ 17 Wall. 357; s. c. ante, p. 378. 
 
 officers, or seamen, respectively, nor to ^ Id. 361. ^ 24 How. 1, 40. 
 
 lessen or take away any responsibility to * See also Walker v. Transportation Co., 
 
 which any master or seaman of any vessel 3 Wall. 150, 152; Carroll v. Staten Island 
 
 may by law be liable, notwithstanding such R. Co., 58 N. Y. 126, 142; Chamberlain r. 
 
 master or seaman may be an owner or part- Western Transp. Co., 44 N. Y. 005, 008. 
 
 owner of the vessel. * 24 How. 1. 
 
 "§4288. Any person shipping oil of vit- «§ 7; Rev. Stats., § 42811, SMpra. This point 
 
 riol, unslaked lime, inflammable matches, arose in an earlier case, but was not decided, 
 
 or gunpowder, in a vessel taking cargo for The Niagara v. Cordes, 21 How. 7. 
 
 divers persons on freight, without delivering " Walker v. Transportation Co., 3 Wall. 
 
 at the time of shipment a note fn writing, 150; Chamberlain v. Western Transp. Co., 
 
 expressing the nature and character of such 44 N. Y. 305. 
 
 merchandise, to the master, mate, officer, s 3 Wall. 150. 
 
 or person in ch-rge of the lading of the * Rev. Stats., § 4282, supra, p. 483, note.
 
 STATUTES OF THE UNITED STATES. 485 
 
 Act of March 3, 1851 — Passenger's Baggage. 
 
 defence to the pkihitiff' s suit, that the wheat was destroyed by a fire which was 
 not caused by the "design or neglect" of the defendant. Miller, J., deliver- 
 ing the opinion of the court, held this to be a good defence. "When we con- 
 sider," said he, "that the object of the act is to limit the liability of owners of 
 vessels, and that the exception is not, in terms, of negligence generally, but only 
 of negligence of the owners, it would be a strong construction of the act, in 
 derogation of its general purpose, to hold that this exception extends to the 
 officers and crews of the vessels as representing the owners." ^ So, where a libel 
 was filed to recover damages for injuries to goods by fire caused by the alleged 
 negligence of the master who was also a part-owner, but not by the design or 
 neglect of the other part-owners, it was held that such part-ownei's personally, 
 and also their interests in the vessel, were exempted from liability .^ 
 
 (p.) Application to Passenger- Carriers in respect of Passengers^ Baggage. — 
 A most interesting question in connection with the subject of this book is 
 whether carriers of passengers can take advantage of the provisions of this 
 act in relation to their liability for the safe transportation of the baggage of their 
 passengers. Upon this point we find no adjudication in the Federal courts. The 
 question, however, has been considered in two of the most eminent State juris- 
 dictions, and contraiy conclusions have been reached. In Dunlap v. Interna- 
 tional Steamboat Company,^ the action was tort for the value of a valise and its 
 contents, lost from the custody of the defendants. The valise contained 86 sov" 
 ereigns in British coin and 8393 in gold coin of the United States belonging to 
 the plaintiff, besides other coin, the ijroperty of a companion. It did not appear 
 that any notice was given to the defendants, or to any of their agents or servants, 
 that the valise contained gold, or any article of peculiar value. The second sec- 
 tion* of the act was set up in defence to the action. It was held that the statute 
 had no application to the case. Bigelow, C. J., said: "We are of opinion that 
 the provisions of the United States Statute of 1851, chap. 43, § 2, on which the 
 defendants rely in bar of these actions, do not apply to contracts entered into 
 with masters or owners of vessels for the carriage, by water, of passengers with 
 their luggage. The manifest design of the statute was to restrict the liability of 
 common carriers by water, of certain kinds of goods and merchandise. In regard 
 to these it changes the rule of the common law. For this reason, its provisions 
 are not to be extended by implication. Giving to the phraseology of the statute 
 its fair and full meaning, without enlarging it by construction, it indicates quite 
 clearly that its framers intended to embrace only that class of contracts where 
 goods are shipped and laden on board of vessels to be transported as freight, for 
 Avhich bills of lading are usually given by the carrier and received by the shipper, 
 and form the evidence of the terms on which the contract of carriage is to be 
 performed. The contracts on which the plaintiffs rely are not within the pro- 
 visions of the statute."' 
 
 The contrary conclusion was reached by the Court of Appeals of New York in 
 Chamberlain v. Western Transportation Company.^ The action was brought by the 
 plaintiff as assignee, to recover for the value of some passengers' baggage de- 
 stroyed with the defendant's vessel. The cause of the fire was unknown. The 
 
 » 3 Wall. 153. See also Chisholm v. North- < Rev. Stats., § 42S1, mpra, p. 4S3, note, 
 
 ern Transp. Co., 61 Barb. .363. ^ 98 Mass. 375. To Iho same effect is 
 
 = Keene v. The AVhistler, 2 Sawyer, 348. Brock v. Gale, 14 Fla. 523, 535. 
 3 98 Mass. 371. <> 44 N. Y. 305.
 
 486 CARRIERS OF PASSENGERS BY WATER. 
 
 Notes. 
 
 defendant claimed to be protected against any recovery in this action by virtue 
 of the first section of the act,' but the plaintiff contended that the baggage in 
 question was not "goods or merchandise" within the meaning of this section, 
 and hence that the defendant was under the common-law liability. The trial 
 court directed a verdict for the plaintiff, subject to the opinion of the general 
 term, which subsequently ordered judgment for the plaintiff.^ In the Court of 
 Appeals this judgment was reversed. Earl, C. J., said: "This is not in any 
 sense a penal statute, nor is it in any way derogatory to natural right, and hence 
 I know of no rule of law that requires that it should be strictly construed. It is 
 true that it changes the common law, but there can be no reason for applying 
 the rule of strict construction to the vast body of statute laws which change the 
 common law. The prior law, whether it be statute or common law, is to pre- 
 vail unless the subsequent statute, by a fair or proper construction, repeals or 
 modifies it. This statute is rather a remedial statute. It was enacted to remedy 
 the rigor of the common law, which it was deemed unwise, on grounds of public 
 policy, to continue. It should therefore be construed, if not liberally, at least 
 fairly, to carry out the policy which it was enacted to promote." ^ The learned 
 judge then proceeded to apply familiar rules of coustruction deduced from adju- 
 dicated cases,* and examining the act as a whole, concluded that "there is no 
 reason for believing that the law-makers meant by the language used in the sub- 
 sequent sections to include baggage, and not to include it in the words 'any 
 goods or merchandise whatsoever,' used in the first section."^ A similar con- 
 clusion was reached in a case arising under the English Merchants' Shipping Act 
 of 1854.« 
 
 In a late case before the Supreme Court of the United States, an effort was 
 made to bend § 4281' of the Revised Statutes to an exti'aordiuary purpose, ^iz., 
 to exempt a railroad company from liability for the theft of valuable laces from 
 the trunk of a passenger while in the charge of the company. These laces con- 
 stituted a part of the wearing apparel of the passenger, and were properly a part 
 of her baggage. The company had no knowledge of their being in the trunk, 
 and no extra compensation was paid for the carriage of the trunk. The court 
 held that the section in question had no application whatever to the case, but 
 referred alone to the liability of carriers by water who transport goods and mer- 
 chandise of the kind designated.^ 
 
 (c.) Jurisdiction in certain Cases. — A question of jurisdiction has at different 
 
 1 Rev. Stats., § 4282, supra, p. 483, note. « 17 & ig vict., c. 101, § 503. The language 
 
 * See 45 Barb. 218. of this section, corresponding to § 1 of 
 8 44 N. Y. 309. the act of 1851, is as follows: "No owner of 
 
 * Citing Maillard v. Lawrence, 16 How. any sea-going ship, or share therein, shall be 
 251; United States v. Coombs, 12 Pet. 72; liable to make good any loss or damage that 
 James V. Patten, 6 N. Y. 9; Pillow v. Bush- may happen without his actual fault or priv- 
 nell, 5 Barb. 156; United States t'. Freeman, ity, of or to any of the following things 
 3 How. 556, 565; Waller v. Harris, 20 Wend. (that is to say) : (1.) Of or to any goods, mer- 
 555-561. chandise, or other things whatsoever taken 
 
 5 It will be noticed that in the Revised in or put on board any such ship, by reason 
 
 Statutes the language of this section is of any fire happening on board such ship." 
 
 amended so as to read, " any merchandise McDougall v. Allan, 6 Lower Canada Jur. 
 
 whatever." It would seem that with the 233. ^ Sujyra, p. 483, note, 
 
 omission of the word "goods," this section s New York etc. R. C.>. v. Fraloff, 9 Cent, 
 
 cannot bear the construction adopted iu this L. J. 432; s. c. 8 Reporter, 801; 20 Alb. L. J. 
 
 case. 409 ; post, p. 502.
 
 STATUTES OF THE UNITED STATES. 487 
 
 Jurisdiction in Certain Cases. 
 
 times arisen under this act. Sect. 3 of tlie act^ limits tlie liability of ship- 
 owners to the value of the ship and freight then pending. Sect. 4 of the act ^ 
 provides the mode to be adopted by the ovraer, in case the injury is to several, 
 and the value of the ship and freight then pending is insufficient to compensate 
 all in full, to stay actions at common law in the State courts. In such cases the 
 remedy cannot be afforded by a court of common law, which has not the methods 
 or the machinery whereby the act can be administered.^ But no objection can be 
 taken to the jurisdiction of a common-law court where the injury is sustained 
 by a single party, and the amount of damage is less than the value of the ship 
 and pending freight.* 
 
 Other cases, illustrative of the construction to be put upon the sections of the 
 act referring to collisions, and therefore not properly within the scope of this 
 note, will be added without extended notice.^ 
 
 » Rev. Stats., § 4283, supra, p. 4S3, note. ^ Thorp v. Hammond, 12 Wall. 409; Nor- 
 
 2 Rev. Stats., §§ 42S4, 4285, supra, p. 483, n. wich Co. v. Wright, 13 Wall. 104; The City 
 
 3 Chisholm v. Northern Transp. Co., 61 of Hartford and The Unit, 11 Blatchf. 290; 
 Barb. 863. Place v. The City of Norwich, 1 Ben. 89 ; 
 
 < Dougan v. Champlain Transp. Co., 56 N. AUen v. Mackay, 1 Sprague, 219. 
 Y. 1.
 
 CHAPTEE XYL 
 
 LIABILITY OF CARRIER IN RESPECT OF PASSENGER'S 
 
 BAGGAGE. 
 
 Leadixg Cases : 1. HolUster v. Nowlen. — Carriers of passengers are respon- 
 sible as common carriers for the baggage of passengers — 
 Power to limit this common-law liability by notice or con- 
 tract — Regulations as to carriage of baggage. 
 2, Neio York Central and Hudson Biver Bailroad Company v. 
 Fraloff. — The same subject — What is baggage — Value 
 of baggage — Fraud of passenger. 
 
 Notes : § 1 . What is baggage — A mixed question of law and fact. 
 
 2. Articles which cannot be considered as baggage. 
 
 3. Articles which are comprehended under the term "bag- 
 
 gage." 
 
 4. Custody of the baggage — "Booking" and "checking." 
 6. Baggage under the personal control of the passenger — 
 
 Theft of. 
 
 6. Articles received in other capacity than as a carrier. 
 
 7. A question of respondeat superior. 
 
 8. The contract in respect of the carriage of baggage — A 
 
 can-ier of passengers is responsible as a common carrier 
 for the safe carriage of baggage. 
 
 9. Responsibility for extra baggage. 
 
 10. Baggage of gratuitous passenger. 
 
 11. Lien upon baggage for fare. • 
 
 12. Carriers of baggage only. 
 
 13. Liability of carrier for loss of baggage, how limited by con- 
 
 tract. 
 
 14. Liability of carrier for loss of baggage, how limited by 
 
 notice — English Railway and Canal Traffic Act. 
 16. What will constitute notice. 
 
 16. An exception under the Railway and Canal Traffic Act — 
 
 Excursion trains. 
 
 17. Regulations of the carrier in respect of baggage — Notice 
 
 to passenger. 
 
 18. Liability of the carrier limited by statute. 
 
 19. Duties of the passenger in respect of baggage during 
 
 transit. 
 
 20. Liability of sleeping-car companies for loss of baggage 
 
 and valuables. 
 (488)
 
 passenger's baggage. 489 
 
 Hollister v. Nowlen. 
 
 Notes: § 21. Duty of the carrier to deliver baggage safely. 
 
 22. Duty of carrier to afford facilities for delivery and storage 
 
 of baggage at destination. 
 
 23. Duty of the passenger to remove his baggage on arrival at 
 
 destination. 
 
 24. Delivery of baggage upon forged order. 
 
 25. Measure of damages in action for loss of baggage. 
 
 26. Procedure — Parties to action. 
 
 27. Pleading — Form of action. 
 
 28. Competency of plaintiff to show the contents of baggage. 
 
 29. Burden of proof. 
 
 30. Bes gestae. 
 
 1. CARRIERS OF PASSENGERS RESPONSIBLE AS COMMON CARRIERS 
 
 for the baggage of passengers — power to limit com- 
 mon-law liability by notice or contract — regulations 
 as to carriage of baggage. 
 
 Hollister v. Nowlen.* 
 
 Supreme Court of Judicature of New York, 1838. 
 
 Hon. Samuel Nelson, Chief Justice. 
 " Greene C. Bronson, \ j ■, 
 " esek cowen, j 
 
 1. Liabilities of Carriers of Passengers in respect of Passenger's Bag-gage.— 
 
 Stage-coach proprietors and other carriers by land and water are answerable as com- 
 mon carriers for the baggage of passengers. They are regarded as insurers thereof, 
 and must answer for any loss not occasioned by the act of God or the public enemies. 
 
 2. Common-Law Liability, how restricted. — If a carrier can restrict his common-law 
 
 liability, it can only be by an express contract. Such a contract cannot be implied or 
 inferred from a general notice, though brought home to the knowledge of the owner of 
 the property. Stage-coach proprietors and other common carriers cannot restrict their 
 common-law liability by a general notice that the "baggage of passengers is at the 
 risk of the owners." 
 
 8. Carrier may demand Statement of Value of Baggage, and Premium in propor- 
 tion thereto. — A common carrier, like other insurers, may demand a premium pro- 
 portioned to the hazards of his employment; he may, therefore, require the owners of 
 goods to give such Information as will enable him to decide on the proper amount of 
 compensation for his services and risk, and the degree of care necessary to the dis- 
 charge of the trust. If the owner gives an an.swer false in any material point, the 
 carrier will be absolved from the consequences of a loss not occasioned by negligence 
 or misconduct, but in such a case actual notice of the requirements of the carrier must 
 be brought home to the knowledge of the owner of the goods. 
 
 This was an action against the defendant as a common carrier for the 
 loss of the plaintiff 's trunk and contents. A case was agreed on be- 
 
 * Reported, 19 Wend. 234.
 
 490 passenger's baggage. 
 
 Hollister v. Nowlen. 
 
 tween the parties, stating the following facts: The defendant was a 
 member of a company the proprietors of three daily lines of stage- 
 coaches running between Canandaigna and Buffalo, one of which was 
 called the Telegraph Line. The defendant resided at Avon, and with 
 his teams and coaches ran that part of the route lying between Avon 
 and Le Roy. East of Canandaigua the line was owned by other pro- 
 prietors. The plaintiff resided at Utica, and at that place entered as a 
 passenger in the Telegraph Line for Buffalo. His baggage consisted of 
 a trunk, containing clothing to the value of $116.75. The fare was 
 duly paid. On July 20, 1833, before daylight in the morning, the 
 plaintiff left Avon in the defendant's coach on his way to Buffalo. 
 The trunk was placed in the boot behind the coach, which was carefuU}- 
 secured by strong leather covering, fastened with strong leather straps 
 and buckles, and was made secure against any loss except b}'^ violence. 
 After proceeding about three miles, it was discovered that the straps 
 confining the cover to the boot had been cut, and the plaintiff 's trunk 
 with its contents had been feloniously stolen and carried off. There 
 was no negligence on the part of the defendant or his servants in rela- 
 tion to the trunk, further than may be implied from the facts above 
 stated. The plaintiff left the stage, went back to Avon and reported 
 his loss ; and the defendant offered a reward, and made all proper 
 efforts for the recovery of the property, but without success. 
 
 The Telegraph Line was establislied in 1828. A public notice that 
 baggage sent or carried in the Telegraph Line tvould be at the risk of 
 the oivner thereof, printed on a large sheet, had been uniformly kei)t 
 placarded in most of the stage-offices and pubUc-houses from Albany to 
 Buffalo; and particularly such notice had been continually affixed up 
 in the stage-office and principal public-houses at Utica, where tlie 
 plaintiff had resided for the last three years before the trunk was lost. 
 It was stipulated that should the court be of opinion that the plaintiff 
 was entitled to recover, judgment should be entered in his favor for 
 $116.75, and interest from July 20, 1833, besides costs. 
 
 Tliis cause was twice argued, the first time in July term, 1835, by 
 C. P. Kirkland, for the plaintiff, nnd by M. T. Reynolds, for the 
 defendant; and the second time in July term, 1837, by G. P. Kirkland. 
 for the plaintiff, and bj P. Gridley, for the defendant. At this ten;i 
 the following opinion was delivered : — 
 
 By the Court, Bronson, J. — Stage-coach proprietors and other car- 
 riers by land and water incur a very different responsibility in relation 
 to the passenger and his baggage. For an injury to the passenger they 
 are answerable onl}"^ where there has been a want of proper care, dili-
 
 LIABILITY FOR LOSS OF. 491 
 
 Supreme Court of Judicature of New York. 
 
 gence, or skill ; but in relation to baggage they are regarded as insur- 
 ers, and must answer for any loss not occasioned by inevitable accident 
 or the public enemies. As the point, though made, was not discussed 
 by the defendant's counsel, I shall content myself with referring to a 
 few cases to prove that they are liable as common carriers for the loss 
 •or injury of the property of the passenger. ^ The fact that the owner is 
 present, or sends his servant to look after the property, does not alter 
 the case. 2 Chambre, J., said: "It has been determined that if a man 
 travel in a stage-coach and take his portmanteau with him, though 
 he has his eye upon the portmanteau, yet the carrier is not absolved 
 from his responsibility, but will be liable if the portmanteau be lost." 
 The liability of a carrier is like that of an innkeeper ; and it was said in 
 Cali/e's Case,^ that " it is no excuse for the innkeeper to say that he 
 delivered the guest the key of the chamber in which he lodged, and 
 that he left the door open, but he ought to keep the goods and chattels 
 of his guests there in safety." When there is no fraud, the fact that 
 the owner accompanies the property cannot affect the principle on which 
 the carrier is charged in case of loss. 
 
 The principal question in the cause arises out of the notice given by 
 the coach proprietors that baggage carried by the Telegraph Line looukl 
 be at the risk of the owner; and the first inquiry is whether there was 
 sufficient evidence to charge the plaintiff with a knowledge of the notice. 
 If we are to follow the current of modern English decisions on this 
 subject, it cannot be denied that there was evidence to be left to a jury, 
 and upon which they might find that the plaintiff had seen the notice. 
 But I think the carriei', if he can by any means restrict his liability, can 
 only do so by proving actual notice to the owner of the property. I 
 agree to the rule laid down by Best, C. J., in Brooke v. Pickivick,'^ decided 
 in 1827, when tlie courts of Westminster Hall had commenced retracing 
 their steps in relation to the liability of carriers, and were endeavoring 
 to get back on to the firm foundation of the common law. He said : 
 "If coach proprietors wish honestly to hmit their responsibility, they 
 ought to announce their terms to every individual who applies at their 
 office, and at the same time to place in his hands a printed paper speci- 
 fying the precise extent of their engagement. If they omit to do this, 
 they attract customers under the confidence inspired by the extensive 
 liability which the common law imposes upon carriers, and then endeavor 
 
 ' Orange County Bank v. Brown, 9 Wend. = Robinson v. Duumore, 2 Bos. «& Pul. 418. 
 
 85 ; Camilen etc. U. Co. v. Burke, 13 Wend. a 8 Co. fi3. 
 
 Cll; Brooke v. Pickwick, 4 Bing. 218; Clark i 4 Bing. 218. 
 V. Gray, 4 Esp. 177; 2 Kent's Comm. SOI.
 
 492 passenger's baggage. 
 
 HoUistei* V. Nowlen. 
 
 to elude that liability by some limitation which they have not been at 
 the pains to make known to the individual who has trusted them." 
 
 I should be content to place my opinion upon the single ground that 
 if a notice can be of any avail, it must be directly brought home to the 
 owner of the property, and that there was no evidence in this case 
 which could properly be submitted to a jury to draw the inference that 
 the plaintiff knew on what terms the coach proprietor intended to trans- 
 act his business. But other questions have been discussed, and there 
 is another case before the court where the judge at the circuit thought 
 the evidence sufficient to charge the plaintiff with notice. It will there- 
 fore be proper to consider the other questions which have been made b}^ 
 the counsel. 
 
 Can a common carrier restrict his liability by a general notice, in any 
 form, brought home to the opposite party? Without intending to go 
 much at large into this vexed question, it will be necessary to state some 
 leading principles relating to the duties and liabilities of the carrier, and 
 the ground upon which his responsibility rests. 
 
 The rules of the common law in relation to common carriers are 
 simple, well-defined, and, what is no less important, well understood. 
 The carrier is liable for all losses except those occasioned b}' the act of 
 God or the public enemies. He is regarded as an insurer of the prop- 
 erty committed to his charge, and neither destruction by fire nor rob- 
 bery by armed men will discharge him from liability. Holt. C J., in 
 pronouncing his celebrated judgment in the case of Coggs v. Bernard,^ 
 said: ''This is a politic establishment, contrived by the policy of the 
 law, for the safety of all persons, the necessity of whose affairs oblige 
 them to trust these sort of persons, that they may be safe in their ways 
 of dealing." In Forivard v. Pittard,^ where the carrier was held liable 
 for a loss by fire. Lord Mansfield said, that, " to prevent litigation, col- 
 lusion, and the necessity of going into circumstances impossible to be 
 unravelled, the law presumes against the carrier, unless he shows it was 
 done by the king's enemies, or by such act as could not happen by the 
 intervention of man, — as storms, lightnings, and tempests." And in 
 relation to a loss by robbery he said : " The ti\ue reason is for fear it may 
 give room for collusion, — that the master may contrive to be robbed on 
 purpose, and share the spoil." The rule has been fully recognized in 
 this State. 2 In Roberts v. Turner,'^ Spencer, J., said: "The carrier is 
 held responsible as an insurer of the goods, to prevent combinations, 
 chicanery, and fraud." 
 
 I 2 Ld. Raym. 918. * 1 Term Rep. 27. r. Rossell, 10 Johns. 1; Kemp v. Coughtry, 
 
 8 Colt V. McMechen, 6 Johns. IGO; Elliott 11 Johns. 107. * 12 Johns. 232.
 
 LIABILITY FOR LOSS OF. 493 
 
 Supreme Court of Judicature of New York. 
 
 A common carrier exercises a public employment, and consequently 
 has public duties to perform. He cannot, like the tradesman or 
 mechanic, receive or reject a customer at pleasure, or charge any price 
 that he chooses to demand. If he refuse to receive a passenger or 
 carry goods according to the course of his particular employment, 
 without a sufficient excuse, he will be liable to an action ; and he can 
 only demand a reasonable compensation for his services and the hazard 
 which he incurs. ^ 
 
 It has been said that the carrier is liable in respect of his reward. ^ 
 Lord Coke says: "He hath his hire, and thereby implicitly undertaketh 
 the safe delivery of the goods delivered to him. ' ' ^ The carrier may, 
 no doubt, demand a reward proportioned to the service he renders and 
 the risk he incurs ; and, having taken it, he is treated as an insurer, and 
 bound to the safe delivery of the property. But the extent of his lia- 
 bility does not depend on the terms of his contract ; it is declared by 
 law. His undertaking, when reduced to form, does not differ from that 
 of any other person who may agree to carry goods from one place to 
 another ; and yet, one who does not usually exercise this public employ- 
 ment will incur no responsibility beyond that of an ordinary bailee for 
 hire ; he is not answerable for a loss by any means against which he 
 could not have guarded by ordinary diligence. It is not the form of 
 the contract, but the policy of the law, which determines the extent of 
 the carrier's liability. In Ansell v. Water hoiise,'^ which was an action 
 on the case against the proprietor of a stage-coach for an injury to the 
 plaintiff's wife, Holroyd, J., said: "This action is founded on what 
 is quite collateral to the contract, if any ; and the terms of the contract, 
 unless changing the duty of a common carrier, are in this case quite 
 immaterial. Tlie declaration states an obligation imposed upon him by 
 the law. This is an action against a person who, by an ancient law, 
 held as it were a public office, and was bound to the pul)lic. This 
 action is founded on the general obligation of the law." In Forivard v. 
 Pittard,^ hold Mansfield said: "It appears from all the cases for a 
 hundred 5'ears back, that there are events for which the carrier is liable 
 independent of his contract. By the nature of his contract, he is liable 
 fpr all due care and diligence ; and lor any negligence he is suable on 
 his contract. But there is a further degree of responsibility by the cus- 
 
 1 Coggs V. Bernard, 2 Ld. Rayin. 917; Bac. Kent'sComm. 599; Story on Bail. 328; Jeremy 
 
 Abr., tit. "Carriers," B; Boulston v. Sandi- on Car. 59. 
 ford, Skin. 279 ; Gisbourn v. Hurst, 1 Salk. 249, 2 Lane v. Cotton, 1 Salk. U3. 
 
 250; Riley v. Home, 5 Bing. 217; Harris v. » Co. Lit. 89 a. « 2 Chit. 1. 
 
 Packwood, 3 Taun. 272, per Lawrence, J. ; 2 ^ 1 Term Rep. 27.
 
 494 PASSENGER S BAGGAGE. 
 
 Hollister v. Nowlen. 
 
 torn of the realm, — that is, by the common law; a carrier is in the 
 nature of an insurer." ^ 
 
 The law in relation to carriers has in some instances operated with 
 severity, and they have been charged with losses against which no 
 degree of diligence could guard. But cases of this description are 
 comparatively of rare occurrence ; and the reason why they are included 
 in the rule of the common law is not because it is fit in itself that any 
 man should answer without a fault, but because there are no means of 
 effectually guarding the public against imposition and fraud, without 
 making the rule so broad that it will sometimes operate harshly. It 
 was well remarked by Best, C. J., in Riley v. Horne,^ that "when 
 goods are delivered to the carrier, they are usually no longer under 
 the eye of the owner ; he seldom follows or sends any servant with them 
 to their place of destination. If they should be lost or injured by the 
 grossest negligence of the carrier or his servants, or stolen by them, or 
 by thieves in collusion with them, the owner would be unable to prove 
 either of these causes of loss. His witnesses must be the carrier's ser- 
 vants, and they, knowing that they could not be contradicted, would 
 excuse their masters and themselves." These remarks lose little of 
 their force when applied to the case of passengers in stages, steam- 
 boats, and railroad cars ; for, although they are in the neighborhood 
 of their property, it is neither under their eye, nor have they any effi- 
 cient means of protecting it against the consequences of negligence and 
 fraud. The traveller is usually among strangers. His property is in the 
 hands of men who are sometimes selected with little regard to their dili- 
 gence and fidelity ; and if the remedy of the owner, in case of loss, 
 depend on the question of actual negligence or fraud, he must make 
 out his right to recover by calling the very men whose recklessness or 
 frailty has occasioned the injury. It was remarked by Best, C. J., in 
 Brooke v. Pickwick^^ that, " though coach proprietors of the present 
 day are a respectable and opulent class, many of the persons employed 
 by them resemble those whom the common law meant to guard against." 
 
 There is less of hardship in the case of the carrier than has some- 
 times been supposed ; for while the law holds him to an extraordinary 
 degree of diligence, and treats him as an insurer of the propert}', it 
 allows him, like other insurers, to demand a premium proportioned to 
 the hazards of his employment. The rule is founded upon a great 
 principle of public policy ; it has been approved by many generations 
 
 » See also Hide v. Froprietors, etc., 1 Esp. 36. « 5 Bing. 217. « 4 Bing. 21S.
 
 LIABILITY FOR LOSS OF. 495 
 
 Supreme Court of Judicature of New York. 
 
 of wise men ; and if the courts were now at liberty to make instead of 
 declaring the law, it may well be questioned whether they could devise 
 a system which, on the whole, would operate more beneficially. I feel 
 the more confident in this remark from the fact that in Great Britain, 
 after the courts had been perplexed for thirty years with various modi- 
 fications of the law in relation to carriers, and when they had wandered 
 too far to retrace their steps, the legislature finally interfered, and in 
 all its most important features restored the salutary rule of the common 
 law. 
 
 The doctrine that a carrier might limit his responsibility by a general 
 notice brought home to the employer prevailed in England for only a 
 short period. In Smith v. Horne,^ Burrough, J., said: "The doc- 
 trine of notice was never known until the ease of Forward v. PUtnrd,^ 
 which I argued many years ago." That case was decided in 1785, and 
 it is remarkable that it does not contain one word on the subject of 
 notice. If that question was in any form before the court, it is not 
 mentioned by the reporter ; and the decision was against the carrier, 
 although the loss was occasioned by fire, without his default. The 
 doctrine was first recognized in Westminister Hall in 1804, where the 
 case of NlcJiolson v. WUlan ^ was decided. Lord Ellenborough said 
 tlie practice of making a "special acceptance" had prevailed for a long 
 lime, and that there was "no case to be met with in the books in which 
 the right of a carrier thus to limit by special contract his own responsi- 
 bility, has ever been by express decision denied." Whatever may be 
 the rule where there is in fact a special contract, the learned judge 
 could not have intended to say that a carrier had for a long time been 
 allowed to limit his liability by a general notice, or that a special con- 
 tract had been implied from such a notice ; for he refers to no case 
 in support of the position, and would have searched in vain to find one. 
 Only eleven years before (in 1793), Lord Kenyon had expressly laid 
 down a different rule in Hide v. Proprietors, etc.'^ He said: "There is 
 a difference where a man is chargeable by law generally, and where on 
 his contract. Where a man is bound to any duty, and chargeable to a 
 certain extent by the operation of law, in such case he cannot, by any 
 act of his own, discharge himself." And he put the case of common 
 carriers, and said they cannot discharge themselves "by any act of 
 their own, — as by giving notice, for example, to that effect." This 
 case was afterwards before the King's Bench, but on another point.^ 
 
 The doctrine in question was not received in Westminister Hall with- 
 
 1 8 Taun. 144. 2 1 xerm Rep. 27. ' 5 East, 507. < 1 Esp. 36. ' 6 Term Rep. 389.
 
 490 passenger's baggage. 
 
 Hollister v. Nowlen. 
 
 out much doubt ; and although it ultimately obtained something like a 
 firm footing, many of the English judges have expressed their regret 
 that it was ever sanctioned by the courts. Departing as it did from the 
 simplicity and certainty of the common-law rule, it proved one of the 
 most fruitful sources of legal controversy which has existed in modern 
 times. When it was once settled that a carrier might restrict his liabil- 
 ity by a notice brought home to his employer, a multitude of questions 
 sprung up in the courts which no human foresight could have antici- 
 pated. Each carrier adopted such a form of notice as he thought best 
 calculated to shield himself from responsibility without the loss of 
 employment, and the legal effect of each particular form of notice 
 could only be settled by judicial decision. Whether one who had given 
 notice that he would not be answerable for goods beyond a certain value 
 unless specially entered and paid for was liable in case of loss to the 
 extent of the value mentioned in the notice, or was discharged alto- 
 gether ; whether, notwithstanding the notice, he was liable for a loss by 
 negligence, and, if so, what degree of negligence would charge him ; 
 what should be sufficient evidence that the notice came to the knowl- 
 edge of the emploj^er; whether it should be left to the jury to presume 
 that he saw it in a newspaper which he was accustomed to read, or 
 observed it posted up in the office where the carrier transacted his busi- 
 ness ; and then, whether it was painted in large or small letters, and 
 whether the owner went himself or sent his servant with the goods, and 
 whether the servant could read, — these and many other questions were 
 debated in the courts, while the public suffered an almost incalculable 
 injury in consequence of the doubt and uncertainty which hung over 
 this important branch of the law.^ After j'ears of litigation, Parliament 
 interfered in 1830, and relieved both the courts and the public by sub- 
 stantially reasserting the rule of the common law.^ 
 
 Without going into a particular examination of the English cases, it 
 is suflBcient to say that the question has generally been presented on a 
 notice by the carrier that he would not be responsible for any loss 
 beyond a certain sum unless the goods were specially entered and paid 
 for; and the decisions have for the most part only gone far enougli 
 to say that if the owner do not comply with the notice, bj'^ stating the 
 true value of the goods and having them properly entered, the carrier 
 will be discharged. In these cases the carrier had not attempted to 
 exclude all responsibihty. But there are two nisi prius decisions 
 which allow the carrier to cast off all liability whatever. In Having v. 
 
 1 See 1 Bell's Comm. 474. i Stat. 1 Wm. IV., c. 63.
 
 LIABILITY FOR LOSS OF. 497 
 
 Supreme Court of Judicature of New York. 
 
 Todd,^ the defendant had given notice that he would not answer for a 
 loss by fire ; and such a loss having occurred, Lord Ellbnborough 
 thought that carriers might exclude their liability altogether, and non- 
 suited the plaintiff. In Leeson v. HoU,^ tried in 1816, he made a like 
 decision; though he very justly remarked that "if this action had been 
 brought twenty years ago, the defendant would have been liable ; since 
 by the common law a carrier is liable in all cases except two." We have 
 here, what will be found in many of the cases, a very distinct admission 
 that the courts had departed from the law of the land, and allowed 
 what Jeremy's Treatise on Carriers^ very properly terms "recent 
 innovations." 
 
 Some of the cases which have arisen under a general notice have 
 proceeded on the ground of fraud,'* others on notion of a special 
 acceptance or special contract,^ while in some instances it is difficult 
 to say what general principle the court intended to establish. 
 
 So far as the cases have proceeded bn the ground of fraud, and can 
 properly be referred to that head, they rest on a solid foundation ; for 
 the common law abhors fraud, and will not fail to overthrow it in all 
 the forms, whether new or old, in which it may be manifested. As 
 the carrier incurs a heavy responsibility, he has a right to demand from 
 the employer such information as will enable him to decide on the proper 
 amount of compensation for his services and risk, and the degree of care 
 which he ought to bestow in discharging his trust ; and if the owner give 
 an answer which is false in a material point, the carrier will be absolved 
 from the consequences of any loss not occasioned by negligence or mis- 
 conduct. The case of Kenrig v. Eggleston ^ was decided in 1649. The 
 plaintiff delivered a box to the porter of the carrier, saying " there was 
 a book and tobacco in the box," when in truth it contained £100 in 
 money besides. Roll, J., thought the carrier was nevertheless liable 
 for a loss by robber3^ "But in respect of the intended cheat to the 
 carrier, he told the jury they might consider him in damages." The 
 jury, however, found the whole sum (abating the carriage) for the 
 plaintiff, quod durum videbatur circumstantibus. In Gibbon v. Paynton,'' 
 Lord Mansfield said this was a case of fraud, and he "should have 
 agreed in opinion with the circumstantibus." In Tyly v. Morrice,^ two 
 bags of money, sealed up, were delivered to the carrier [the servant 
 of the plaintiff], saying tliey contained £200, and he gave a receipt 
 for the money. In truth, the bags contained £450 ; and the carrier, 
 
 > 1 stark. 72. * 1 Stark. 186. « Nicholson v. Wman, 5 East, 507 ; Harris 
 
 « Pp. 35, 3G. V. Packwood, 3 Taun. 271. « Alcyn, 93. 
 
 * Batson v. Donovan, 4 Bam. & Aid. 21. • 4 Burr. 2298. « Carth. 485. 
 
 32
 
 498 passenger's baggage. 
 
 Hollister v. Nowlen. 
 
 having been robbed, paid the £200 ; and in this action, brought to 
 recover the balance, the Chief Justice told the jury that, 'since 
 the plaintiffs had taken this course to defraud the carrier of his 
 reward, they should find for the defendant." And the same point 
 was decided in another action against the same carrier. In Gibbon 
 V. Paynton,^ £100 in money was hid in hay in an old mail-bag, which 
 fact the plaintiff concealed from the caiTier; and the money having 
 been stolen, the court held that this fraud would discharge the defend- 
 ant. In the case of Orange County Bank v, Brown^^ the agent of 
 the plaintiffs put $11,000 in bank-bills in his trunk, and delivered 
 it to the captain of the steamboat as his baggage. The court held 
 that the term "baggage" would only include money for the expenses 
 of travelling, and not a large sum, as in this case, taken for the mere 
 purpose of transportation ; and it was said that the conduct of the 
 plaintiffs' agent was a virtual concealment as to the money, — that "his 
 representation of his trunk and tjbe contents as baggage was not a fair 
 one, and was calculated to deceive the captain." The owner is not 
 bound to disclose the nature or value of the goods ; but if he is in- 
 quired of by the carrier, he must answer truly. -^ 
 
 Fraud cannot, I think, be imputed to the owner from the mere fact 
 that he delivers goods after having seen a general notice published by 
 the carrier, whatever may be its purport. If the carrier wishes to ascer- 
 tain the extent of his risk, he should inquire at the time the goods are 
 delivered ; and then, if he is not answered truly, he will have a defence."* 
 A different rule practically changes the burden of proof. At the com- 
 mon law, it is enough that the owner prove the undertaking of the 
 carrier, and that the goods did not reach their destination. But this 
 doctrine of implying fraud from a notice requires him to go further^ 
 and show that he complied with the terras of the advertisement. He 
 may have informed the carrier trul}'^ of the value of the goods, — there 
 may be no fraud, but still he is required to prove himself innocent 
 before he can recover. Independent of a notice, the onus would rest 
 where, upon general principles, it ought to rest, — on him who imputes 
 fraud ; and the carrier could not discharge himself without showing 
 some actual misrepresentation or fraudulent concealment. It does not 
 lie on the employer to show how the loss was occasioned, or that he has 
 acted properly ; but the law presumes against the carrier, until he 
 proves that the loss happened by means or under circumstances for 
 which he is not answerable.^ 
 
 1 4 Burr. 2298. ■• See Brooke t;. Pickwick, 4 Bing. 218. 
 
 2 9 Wend. 85. 6 Forward v. Pittard, 1 Term Rep. 33 ; Mur- 
 
 3 Phillips V. Earle, 8 Pick. 182. phy v. Staton,3Munf. 239; Story on Bail. 338.
 
 LIABILITY FOR LOSS OF. 499 
 
 Supreme Coiirt of Judicature of New York. 
 
 But it is enough for this case that the question of fraud can never 
 arise under such a notice as was given by the defendant. He did not 
 say to the public that he would not be answerable for baggage beyond 
 a certain s'lm unless the owner disclosed the value ; he said he would 
 not be answerable in any event. It was, in effect, a notice that he 
 would not abide the liabilities which the law, upon principles of public 
 policy, had attached to his employment. If the notice can aid the 
 defendant in any form, it certainly does not go to the question of 
 fraud. 
 
 The only remaining ground of argument in favor of the carrier is 
 that a special contract may be inferred from the notice. Independent 
 of the modern English cases, it seems never to have been directly 
 adjudged that the liability of the carrier can be restricted by a special 
 contract. Noy,^ after speaking of a loss by negligence, says: "If a 
 « arrier would refuse to carry unless a promise were made to him that 
 he should not be charged with an3'^ such miscarriage, that promise were 
 void." If he cannot stipulate for a partial, it is difficult to see how he 
 can for a total exemption from liability. In Nicholson v. Willan^- Lord 
 Ellenborough found no direct adjudication in favor of the position 
 that a carrier may limit his responsibility by a special contract ; but he 
 relied on the fact that such an exemption had never been "by express 
 decision denied." Although this mode of reasoning is not the most 
 conclusive, I shall not deny that the carrier may by express contract 
 restrict his liability ; for though the point has never been expressly 
 adjudged, it has often been assumed as good law.^ If the doctrine be 
 well founded, it must, I think, proceed on the ground that the person 
 intrusted with the goods, although he usually exercises that employment, 
 does not in the particular case act as a common carrier. The parties 
 agree that in relation to that transaction he shall throw off his public 
 character, and, like other bailees for hire, only be answerable for negli- 
 gence or misconduct. If he act as a carrier, it is difficult to undei'stand 
 how he can make a valid contract to be discharged from a duty or 
 liability imposed upon him by law. 
 
 But, conceding that there may be a special contract for a restricted 
 liability, such a contract cannot, I think, be inferred from a general 
 notice brought home to the employer. The argument is, that wliere a 
 party delivers goods to be carried, after seeing a notice that the carrier 
 
 1 Maxims. 92. Yates, J.; Morse v. Sine, 1 Vent. 190, 238; 
 
 2 5 East, 513. Catley v. Wintringliam, Peak. 150; Harris v. 
 ^ Kenrig tJ. Eggleston, Aleyn, 93; 4 Co. 84; I'ackwood, 3 Tauu. 271; Leesoii v. Holt, 1 
 
 note to Soulhcoic's Case, 4 Burr. 2301, per Stark. 186.
 
 500 passenger's baggage. 
 
 Hollister v. Nowlen. 
 
 intends to limit his responsiViility, his assent to the terms of the notice 
 may be imphed. But this argument entirely overlooks a very important 
 consideration. Notwithstanding the notice, the owner has a right to 
 insist that the carrier shall receive the goods subject to all the responsi- 
 bilities incident to his employment. If the delivery of goods undci' 
 such circumstances authorizes an implication of any kind, the presump- 
 tion is as strong, to say the least, that the owner intended to insist on 
 his legal rights, as it is that he was willing to yield to the wishes of the 
 carrier. If a coat be ordered from a mechanic after he has given the 
 customer notice that he will not fui'nish the article at a less price than 
 $100, the assent of the customer to pay that sum, although it be double 
 the value, may perhaps be implied ; but if the mechanic had been under 
 legal obligation, not only to furnish the coat, but to do so at a reason- 
 able price, no such implication could arise. Now, the carrier is under 
 a legal obligation to receive and convey the goods safely, or answer for 
 the loss. He has no right to px-escribe any other terms ; and a notice 
 can, at the most, only amount to a proposal for a special contract, 
 which requires the assent of the other party. Putting the matter in the 
 most favorable light for the carrier, the mere delivery of goods after 
 seeing a notice, cannot warrant a stronger presumption that the owner 
 intended to assent to a restricted liability on the part of the carrier, 
 than it does that he intended to insist on the liabilities imposed bj' law ; 
 and a special contract cannot be implied where there is such an equi- 
 poise of probabilities. 
 
 Making a notice the foundation for presuming a special contract is 
 subject to a further objection. It changes the burden of proof. Inde- 
 pendent of the notice, it would be sufficient for the owner to prove the 
 delivery and loss of the goods, and it would then lie on the cai'rier to 
 discharge himself by showing a special contract for a restricted liability ; 
 but giving effect to the notice makes it necessary for the owner to go 
 be3'ond the delivery and loss of the goods, and prove that he did not 
 assent to the proposal for a limited responsibility. Instead of leaving 
 the onus of showing assent on him who sets up that affirmative fact, it 
 is thrown upon the other party, and he is required to prove a nega- 
 tive, — that he did not assent. 
 
 After all that has been or can be said in defence of these notices, 
 whether regarded either as a ground for presuming fraud or implj-ing 
 a special agreement, it is impossible to disguise the fact that the^^ are a 
 mere contrivance to avoid the liability which tlie law has attached to the 
 employment of the carrier. If the law is too rigid, it should be modi- 
 fied by the legislature, and not by the courts. It has been admitted
 
 LIABILITY FOR LOSS OF. 501 
 
 Supreme Court of Judicature of New York. 
 
 over and over again by the most eminent English judges tliat the effect 
 given to these notices was a departure from the common law, and they 
 have often regretted their inabilit}' to get back again to that firm 
 foundation. The doctrine that a carrier may limit his responsibilit}' by 
 a notice was wholly unknown to the common law at the time of our 
 Revolution. It has never been received in this, nor, so far as I have 
 observed, in any of the other States. The point has been raised, but 
 not directly decided.^ Should it now be received among us, it will be 
 after it has been tried, condemned, and abandoned in that country to 
 which we have been accustomed to look for light on questions of juris- 
 prudence. 
 
 The act of Parliament already mentioned enumerates various articles 
 of great value in proportion to the bulk, and otters which are peculiarly 
 exposed to damage in transportation, and declares that the carrier shall 
 not be liable for the loss or injury of those articles, when the value 
 exceeds £10, unless at the time of delivery the owner shall declare 
 the nature and value of the property, and pay the increased charge 
 which the carrier is allowed to make for his risk and care. If the 
 owner complies with this requirement, the carrier must give him a 
 receipt for the goods, "acknowledging the same to have been in- 
 sured," and if he refuse to give the receipt, he remains ''liable and 
 responsible as at the common law." The provision extends to the 
 proprietors of stage-coaches as well as all other carriers, and to prop- 
 erty which may "accompany the person of any passenger," as well 
 as other goods ; and the statute declares that after the first day of Sep- 
 tember, 1830, " no public notice or declaration heretofore made, or 
 hereafter to be made, shall be deemed or construed to limit or in any- 
 wise affect the liability at common law" of any carriers, but that all 
 and every such carrier shall be " liable as at the common law to answer" 
 for the loss or injury of the property, " any public notice or declaration 
 by them made and given contrary thereto, or in any wise limiting such 
 liability, notwithstanding." The only modification of the common-law 
 rule in relation to carriers made by this statute is that wliich requires 
 the owner, without a special request, to disclose the nature and value of 
 the package when it contains articles of a particular description. The 
 premium for care and risk, the carrier might have required before. In 
 relation to all articles not enumerated, and in relation to those also, if the 
 owner comply with the requirements of the act, the carrier is declared 
 liable as an insurer, and must answer "as at the common law." The 
 whole doctrine which had sprung up under notices is cut up by the 
 
 1 Barney v. Prentiss, 4 Har. & J. 317; Dwight v. Brewster, 1 Pick. 50.
 
 502 
 
 PASSENGER S BAGGAGE. 
 
 New York Central and Hudson River Railroad Company v. Fraloff. 
 
 roots, and in such language as renders it apparent that the legislature 
 deemed it an innovation on the law of the laud. 
 
 If after a trial of thirty years the people of Great Britain, whose 
 interests and pursuits are not very dissimilar to our own, have con- 
 demned the whole doctrine of limiting the carrier's liability by a notice ; 
 if after a long course of legal controversy they have retraced their steps, 
 and returned to the simplicity and certainty of the common-law rule ; we 
 surely ought to profit by their experience, and should hesitate long 
 before we sanction a practice which not only leads to doubt and uncer- 
 tainty concerning the rights and duties of the parties, but which encour- 
 ages negligence and opens a wide door to fraud. 
 
 If the policy of the law in relation to carriers were more questionable 
 than I think it is, it would be the business of the legislature, and not of 
 the courts, to apply the proper remedy. The plaintiff is entitled to 
 judgment in pursuance of the stipulation contained in the case. 
 
 The Chief Justice concurred. 
 
 Co WEN, J., concurred in the result, for the reasons assigned by him 
 in the case of Cole v. Goodwin.^ 
 
 Judgment for the plaintiff. 
 
 2. THE SAME SUBJECT — WHAT IS " BAGGAGE "— VALUE OF BAG- 
 gage—fraud of passenger. 
 
 New York Central and Hudson River Railroad Company 
 
 V. Fraloff.* 
 
 Supreme Court of the United States, October Term, 1879. 
 
 Hon. Morrison R. Waite, Chief Justice, 
 " Nathan Clifford, 
 
 Samuel F. Miller, 
 
 William Strong, 
 
 Ward Hunt, 
 
 Noah H. Swayne, 
 •* Stephen J. Field, 
 
 Joseph P. Bradley, 
 " John M. Harlan, 
 
 1. Kegnlations as to Bagrgaee of Passengers.— It is competent for a passenger- carrier, 
 by specific regulations, distinctly brought to the knowledge ol tlie passenger, whloli are 
 
 Justices, 
 
 • Reported, 9 Cent. L. J. 432; s. c. 8 Reporter, 801; 20 Alb. L. J. 409. 
 1 19 Wend. 251.
 
 ARTICLES OF GREAT VALUE. 503 
 
 Supreme Court of the United States. 
 
 reasonable, and not inconsistent with any statute or its duties to tlie public, to protect 
 itself against liability, as insurer, for baggage exceeding a fixed amount in value, ex- 
 cept upon additional compensation proportioned to the risk. 
 
 2. Extra Compensation. — As a condition precedent to any contract for the transporta- 
 
 tion of baggage, the carrier may require information from the passenger as to its value, 
 and demand exti-a compensation for any excess beyond that which the passenger may 
 reasonably demand to be transported as baggage under the contract to carry the 
 person. 
 
 3. Value of Baggage — Fraud of Passengrer. — The carrier may be discharged from 
 
 liability for the full value of the passenger's baggage, if the latter, by any device or 
 artifice, puts off inquiry as to such value, whereby responsibility is imposed upon the 
 carrier beyond what it is bound to assume in consideration of the ordinary fare charged 
 for the transportation of the person. 
 
 4. Voluntary Disclosure of Value of Bag-gage not required.— In absence of legisla- 
 
 tion, or special regulations by the carrier, or of conduct by the passenger misleading 
 the carrier as to value of baggage, the failure of the passenger, unasked, to disclose 
 the value of his baggage is not, in itself, a fraud upon the carrier. 
 
 5. What is " Baggage." — To the extent that articles carried by a passenger for his per- 
 
 sonal use when travelling exceed in quantity and value such as are ordinarily or usually 
 carried by passengers of like station and pursuing like journeys, they are not baggage 
 for which the carrier, by general law, is responsible as insurer. 
 
 €. Excess of Baggage — Law and Fact. — Whether a passenger has carried such an 
 excess of baggage is not a pure question of law for the sole or final determination of the 
 court, but a question of fact for the jury, under proper guidance as to the law of the 
 case, and its determination of the facts — no error of law appearing — is not subject to 
 reexamination in this court. 
 
 7. Section 4281 of the Revised Statutes of the United States has no reference to the 
 liability of carriers by land for the baggage of passengers. 
 
 In error to the Circuit Court of the United States for the Southern 
 District of New York. 
 
 Mr. Justice Harlan deUvered the opinion of the court. — This is a 
 writ of error to a judgment rendered against the New York Central and 
 Hudson River Railroad Company, in an action to recover the value of 
 certain articles of wearing apparel alleged to have been taken from the 
 trunk of the defendant in error while a passenger upon the cars of 
 the company, and while the trunk was in its charge for transportation as 
 part of her baggage. There was evidence before the jury tending to 
 establish the following facts: The defendant in error, a subject of the 
 czar of Russia, possessing large wealth, and enjoying high social posi- 
 tion among her own people, after travelling in Europe, Asia, and 
 Africa, spending some time in London and Paris, visited America, in 
 the year 1869, for the double purpose of benefiting her health and see- 
 ing this country. She brought with her to the United States six trunks 
 of ordinary, travel-worn appearance, containing a large quantity of 
 wearing apparel, including many elegant, costly dresses, and also rare 
 and valuable laces wliich she had been accustomed to wear upon differ- 
 ent dresses when on visits, or frequenting theatres, or attending din-
 
 504 passenger's baggage. 
 
 New York Central and Hudson River Railroad Company v. Fraloff. 
 
 ners, balls, or receptions, A portion of the laces was made by her 
 ancestors upon their estates in Russia. After remaining some weeks in 
 the city of New York, she started upon a journey westward, going first 
 to Albany, and taking with her, among other things, two of the trunks 
 brought to this country. Her ultimate purpose was to visit a warmer 
 climate, and upon reaching Chicago, to determine whether to visit Cali- 
 fornia, New Orleans, Havana, and probably Rio Janeiro. After passing 
 a day or so at Albany, she took passage on the cars of the New York 
 Central and Hudson River Railroad Company for Niagara Falls, deliv- 
 ering to the authorized agents of the company for transportation as her 
 baggage the two trunks above described, which contained the larger 
 portion of the dress-laces brought with her from Europe. Upon arriving 
 at Niagara Falls she ascertained that one of the trunks, during trans- 
 portation from Albany to the Falls, had been materially injured, its 
 locks broken, its contents disturbed, and more than two hundred yards 
 of dress-lace abstracted from the trunk, in which it had been carefully 
 placed before she left the city of New York. The company declined 
 to pay the sum demanded as the value of the missing laces ; and having 
 denied all liability therefor, this action was instituted to recover the 
 damages which the defendant in error claimed to have sustained by 
 reason of the loss of her property. 
 
 Upon the first trial of the case, in 1873,^ the jury, being unable to 
 agree, were discharged. A second trial took place in the year 1875. 
 Upon the conclusion of the evidence in chief at the last trial, the com- 
 pany moved a dismissal of the action, and at the same time sub- 
 mitted numerous instructions which it asked to be then given to the 
 jury, among which was one peremptorily directing a verdict in its favor. 
 The motion was overruled, and the court declined to instruct the jury 
 as requested. Subsequently, upon the conclusion of the evidence upon 
 both sides, the motion for a peremptory instruction in behalf of the 
 company was renewed, and again overruled. The court thereupon gave 
 its charge ; to which the company filed numerous exceptions, and also 
 submitted written requests, forty-two in number, for instruction to the 
 jury. The court refused to instruct the jury as asked, or otherwise 
 than as shown in its own charge. To the action of the court in the 
 several respects indicated, the company excepted in due form. The 
 jury returned a verdict against the compan}' for the sura of §10,000, 
 although the evidence, in some of its aspects, placed the value of the 
 missing laces very far in excess of that amount. 
 
 1 [Probably 1872. See Fraloff v. New York etc. R. Co., 10 Blatch. 16.]
 
 ARTICLES OF GREAT VALUE. 505 
 
 Supreme Court of the United States. 
 
 It would extend this opinion to an improper length, and could serve 
 no useful purpose, were we to enter upon a discussion of the various 
 exceptions, unusual in their number, to the action of the court in the 
 admission and exclusion of evidence, as well as in refusing to charge 
 the jury as requested by the company. Certain controlling propositions 
 are presented for our consideration, and upon their determination the 
 substantial rights of parties seem to depend. If, in respect of these 
 propositions, no error was committed, the judgment should be affirmed, 
 without any reference to points of a minor and merely technical nature, 
 which do not involve the merits of the case or the just rights of parties. 
 
 In behalf of the company it is earnestly claimed that the court erred 
 in not giving a peremptory instruction for a verdict in its behalf. This 
 position, however, is wholly untenable. Had there been no serious 
 controversy about the facts, and had the law upon the undisputed evi- 
 dence precluded any recovery whatever against the company, such an 
 instruction would have been proper. ^ The court could not have given 
 such an instruction in this case without usurping the functions of the 
 jury. This will, however, more clearly appear from what is said in the 
 course of this opinion. 
 
 The main contention of the company, upon the trial below, was that 
 good faith required the defendant in error, when delivering her trunks 
 for transportation, to inform its ngents of the peculiar character and 
 extraordinary value of the laces in question ; and that her failure in 
 that respect, whether intentional or not, was in itself a fraud upon the 
 carrier, which prevented any recovery in this action. 
 
 The Circuit Court refused — and, in our opinion, rightly — to so instruct 
 the jury. We are not referred to any legislative enactment restricting 
 or limiting the responsibility of passenger-carriers by land for articles 
 carried as baggage ; nor is it pretended that the plaintiff in error had, 
 at the date of these transactions, established or promulgated any regu- 
 lation as to the quantity or value of baggage which passengers upon its 
 cars might carry, without extra compensation, under the general con- 
 tract to carry the person. Further, it is not claimed that any inquiry 
 was made of the defendant in error, either when the trunks were taken 
 into the custody of the carrier, or at any time prior to the alleged loss, 
 as to the quantity or value of their contents. It is undoubtedly compe- 
 tent for a carrier of passengers, by specific regulations, distinctly brought 
 to the knowledge of the passenger, which are reasonable in their char- 
 acter, and not inconsistent with any statute or its duties to the public, 
 
 1 Schechardt v. Aliens, 1 Wall. 369; Parks v. Ross, 11 How. 372; Richardson v. Boston, 1» 
 How. 269; Pleasants v. Fant, 22 Wall. 121.
 
 506 passenger's baggage. 
 
 New York Central and Hudson River Railroad Company v. Fraloff. 
 
 to protect itself against liability, as insurer, for baggage exceedin<i 
 a fixed amount in value, except upon additional compensation pro- 
 portioned to the risk. And in order that such regulations may be 
 practically effective, and the carrier advised of the full extent of its 
 responsibility, and consequently of the degree of precaution necessary 
 upon its part, it may rightfully require, as a condition precedent to any 
 contract for the transportation of baggage, information from the passen- 
 ger as to its value ; and if the value thus disclosed exceeds that which the 
 passenger may reasonably demand to be transported as baggage without 
 €xtra compensation, the carrier, at its option, can make such additional 
 charge as the risk fairly justifies. It is also undoubtedly true that the 
 carrier may be discharged from liability for the full value of the passen- 
 ger's baggage if the latter, by false statements, or by any device or 
 artifice, puts off inquiry as to such value, whereby is imposed upon the 
 carrier responsibility be3'ond what it was bound to assume in considera- 
 tion of the ordinary fare charged for the transportation of the person. 
 But in the absence of legislation limiting the responsibility of carriers 
 for the baggage of passengers ; in the absence of reasonable regula- 
 tions upon the subject by the carrier, of which the passenger has knowl- 
 edge ; in the absence of inquiry of the passenger as to the value of the 
 articles carried, under the name of baggage, for his personal use and 
 convenience when travelling ; and in the absence of conduct upon the 
 part of the passenger misleading the carrier as to the value of his bag- 
 gage, the court cannot, as a mere matter of law, declare, as it was in 
 effect requested in this case to do, that the mere failure of the passen- 
 ger, unasked, to disclose the value of his baggage, is a fraud upon the 
 carrier, which defeats all right of recovery. The instructions asked by 
 the company virtually assumed that the general law governing the rights, 
 duties, and responsibilities of passenger-carriers prescribed a definite, 
 fixed limit of value, beyond which the carrier was not liable for baggage 
 except under a special contract or upon previous notice as to value. 
 We are not, however, referred to any adjudged case or to any element- 
 ary treatise which sustains that proposition without qualification. In 
 the very nature of things, no such rule could be established by courts in 
 virtue of any inherent power they possess. The quantity or kind or 
 value of the baggage which a passenger may carry under the contract 
 for the transportation of his person depends upon a variety of circum- 
 stances, which do not exist in every case. "That which one traveller," 
 says Erle, C. J., in Phelps v. London, etc. Railway Company,^ "would 
 
 » 19 C. B. (N. S.) 321.
 
 ARTICLES OF GREAT VALUE. 507 
 
 Supreme Court of the United States. 
 
 consider indispensable would be deemed superfluous and unnecessary by 
 another. But the general habits and wants of mankind will be taken in 
 the mind of the carrier when he receives a passenger for conveyance." 
 Some of the cases seem to announce the broad doctrine that, by general 
 law, in the absence of legislation, or special regulations by the carrier 
 of the character indicated, a passenger may take, without extra compen- 
 sation, such articles adapted to personal use as his necessities, comfort, 
 ■convenience, or even gratification may suggest ; and that, whatever may 
 be the quantity or value of such articles, the carrier is responsible for 
 all damages or loss to them from whatever source, unless from the act 
 of God or the public enemy. But that, in our judgment, is not an 
 accurate statement of the law. Whether articles of wearing apparel, in 
 any particular case, constitute baggage, as that term is understood in 
 the law, for which the carrier is responsible as insurer, depends upon 
 the inquiry whether they are such in quantity and value as passengers 
 under like circumstances ordinarily or usually carry for personal use 
 when travelling. "The implied undertaking," says Mr. Angell, "of 
 the proprietors of stage-coaches, railroads, and steamboats to carry in 
 safety the baggage of passengers is not unlimited, and cannot be ex- 
 tended beyond ordinary baggage, or such baggage as a traveller usually 
 carries with him for his personal convenience." ^ In Hannibal Railroad v. 
 Swift,^ this court, speaking through Mr. Justice Field, said that the con- 
 tract to carry the person " only implies an undertaking to transport such 
 a limited quantity of articles as are ordinarily taken by travellers for their 
 personal use and convenience, such quantity depending, of course, upon 
 the station of the party, the object and length of his journey, and many 
 other considerations." To the same effect is a decision of the Queen's 
 Bench in Macrow v. Great Western Railway Company,^ where Cockburn, 
 C. J., announced the true rule to be " that whatever the passenger takes 
 with him for his personal use or convenience, according to the habits or 
 wants of the particular class to which he belongs, either with reference 
 to the immediate necessities or to the ultimate purpose of the journey, 
 must be considered as personal luggage." * To the extent, therefore, 
 that the articles carried by the passenger for his personal use exceed in 
 quantity and value such as are ordinarily or usually carried by passen- 
 gers of like station and pursuing like journeys, they are not baggage for 
 which the carrier, by general law, is responsible as insurer. In cases 
 of abuse by the passenger of the privileges which the law gives him, the 
 carrier secures such exemption from responsibility ; not, however, be- 
 
 » Ang. on Car.. § 115. « 12 Wall. 275. » L. K. 6 Q. B. 612. < 2 Pars, on Con. 199.
 
 508 passenger's baggage. 
 
 New York Central and Hudson Kiver Railroad Company v. Fraloff. 
 
 cause the passenger, uninquired of, failed to disclose the character and 
 value of the articles carried, but because the articles, being themselves 
 in excess of the amount usually or ordinarily carried under like circum- 
 stances, would not constitute baggage within the true meaning of the 
 law. The laces in question confessedly constituted a part of the wear- 
 ing apparel of the defendant in error. They were adapted to, and 
 exclusively designed for, personal use, according to her convenience, 
 comfort, or taste, during the extended journey upon which she had 
 entered. They were not merchandise ; nor is there any evidence that 
 they were intended for sale, or for purposes of business. "Whether they 
 were such articles, in quantity and value, as passengers of like station 
 and under like circumstances ordinarily or usually carry for their per- 
 sonal use, and to subserve their convenience, gratification, or comfort 
 while travelling, was not a pure question of law for the sole or final 
 determination of the court, but a question of fact for the jury, under 
 proper guidance from the court as to the law governing such cases. It 
 was for the jury to say to what extent, if any, the baggage of defendant 
 in error exceeded in quantity and value that which was usually carried 
 without extra compensation, and to disallow any claim for such excess. 
 Upon examining the carefully guarded instructions given to the jury, 
 we are unable to see that the court below omitted any thing essential to 
 a clear comprehension of the issues, or announced any principle or doc- 
 trine not in harmony with settled law. After submitting to the jury the 
 disputed question as to whether the laces were in fact in the trunk of 
 the defendant in error when delivered to the company in Albany for 
 transportation to Niagara Falls, the court charged the jury, in substance, 
 that every traveller was entitled to provide for the exigencies of his 
 journey in the way of baggage ; was not limited to articles which were 
 absolutely essential, but could carry such as were usually carried by 
 persons travelling for their comfort, convenience, and gratification upon 
 such journeys ; that the liability of carriers could not be maintained to 
 the extent of making them responsible for such unusual articles as the 
 exceptional fancies, habits, or idiosyncracies of some particular indi- 
 vidual may prompt him to carry ; that their responsibility as insurers 
 was limited to such articles as it was customary or reasonable for 
 travellers of the same class in general to take for such journeys as the 
 one which was the subject of inquiry, and did not extend to those 
 which the caprice of a particular traveller might lead that traveller to 
 take ; that if the compan}' dehvered to the defendant in error, aside 
 from the laces in question, baggage which had been carried, and which 
 was sufficient for her as reasonable baggaa^e within the rules laid down,
 
 ARTICLES OF GREAT VALUE. 509 
 
 Supreme Court of the United States. 
 
 she was not entitled to recover ; that if she carried the laces in question 
 for the purpose of having them safely kept and stored by railroad com- 
 panies and hotel-keepers, and not for the purpose of using them as 
 occasion might require for her gratification, comfort, or convenience, 
 the company was not liable ; that if any portion of the missing articles 
 was reasonable and proper for her to carry, and all was not, they should 
 allow her the value of that portion. 
 
 Looking at the whole scope and bearing of the charge, and interpret- 
 ing what was said as it must necessarily have been understood both by 
 the court and jury, we do not perceive that any error was committed to 
 the prejudice of the company, or of which it can complain. No error 
 of law appearing upon the record, this court cannot reverse the judg- 
 ment because, upon examination of the evidence, we may be of the 
 opinion that the jury should have returned a verdict for a less amount. 
 If the jury acted upon a gross mistake of facts, or were governed by 
 some improper influence or bias, the remedy therefor rested with the 
 court below, under its general power to set aside the vei'dict. But that 
 court finding that the verdict was abundantly sustained by the evidence, 
 and that there was no ground to suppose that the jury had not per- 
 formed their duty impartially and justly, refused to disturb the verdict, 
 and overruled a motion for a new ti'ial. Whether its action in that 
 particular was erroneous or not, our power is restricted by the Consti- 
 tution to the determination of the questions of law arising upon the 
 record. Our authority does not extend to a reexamination of facts 
 which have been tried by the jury under instructions correctly defining 
 the legal rights of parties.' 
 
 It is perhaps proper to refer to one other point suggested in the 
 elaborate brief of counsel for the company. Our attention is called 
 to § 4281 of the Revised Statutes, which declares that "if any ship- 
 per of platina, gold, gold-dust, * * * coins, jewelry, * * * 
 trinkets, * * * silks in a manufactured or unmanufactured state, 
 and whether wrought up or not wrought up with any other material, furs 
 or lace, or an}^ of them, contained in any parcel, or package, or trunk, 
 shall lade the same as freight or baggage on any vessel, without at the 
 time of such lading giving to the master, clerk, agent, or owner of such 
 vessel receiving the same a written notice of the true character and 
 value thereof, and having the same entered on the bill of lading therefor, 
 the master and owner of such vessel shall not be liable as carriers 
 thereof in any form or manner ; nor shall any such master or owner be 
 
 • Parsons v. Bedford, 3 Pet. 446; Barreda v. Silsbee, 21 How. 167; Insurance Co. v. 
 Folsom, 18 Wall. i249.
 
 510 passenger's baggage. 
 
 Notes. 
 
 liable for any such goods beyond the value and according to the char- 
 acter thereof, so notified and entered." 
 
 It is sufficient to say that that section has no application whatever to 
 this case. It lias reference alone to the liability of carriers by water 
 who transport goods and merchandise of the kind designated. It has 
 no reference to carriers by land, and does not assume to declare or 
 restrict their liability for the baggage of passengers. 
 
 Mr. Justice Field. — I dissent from the judgment of the court in 
 
 this case. I do not think that two hundred and seventy-five yards of 
 
 lace, claimed by the owner to be worth $75,000 and found by the jury 
 
 to be of the value of $10,000, can, as a matter of law, be properl}' 
 
 considered as baggage of a passenger, for the loss of which the railroad 
 
 company, in the absence of any special agreement, should be held liable ; 
 
 and I am authorized to state that Mr. Justice Miller and Mr. Justice 
 
 Strong concur in this view. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 1 . What is Baggage — A Mixed Question of Law and Fact. — The contract 
 of the carrier, as seen above, is to carry the passenger and Ids personal baggage. 
 It is evident tliat in many cases it will become material to determine what arti- 
 cles personal baggage may consist of, and many of the decisions on the subject 
 of passengers' baggage turn upon this question. It is a mixed question of law 
 and fact, to be determined by the jury, under proper instructions from the court.^ 
 It is of course impossible to give any general rule, which will be equally appli- 
 cable to all cases, for the determination of what is and what is not properly 
 baggage. This depends to a very great extent upon the circumstances of each 
 individual case, upon the length of the journey, the purpose for which it is made, 
 the position in life and occupation of the traveller, the mode of conveyance, 
 and the character of the country through which he intends to pass. The adjudi- 
 cated cases on this subject justify the statement that any thiug may be carried 
 as personal baggage which travellers usually carry for their personal use, com- 
 fort, instruction, or amusement, having regard to the circumstances enumerated 
 above.'' Thus, while it would be manifestly improper to permit a business man, 
 
 1 Brock V. Gale, 14 Fla. 523; Dibble v. cuse etc. R. Co., 42 N. T. 326; Gleason v. 
 
 Brown, 12 Ga. 217; Parmalee v. Fisher, 22 Goodrich Transp. Co., 32 Wis. 85; Del Valle 
 
 lU. 212; New York etc. R. Co. v. Fraloff, 20 v. Str. Richmond, 27 La. An. 90; Hutchiugi 
 
 Alb. L. J. 409; s. c. 9 Cent. L. J. 432; 8 Re- v. VV'esieni etc. R. Co., 25 Ga. 61; Macrow v. 
 
 porter, 801 ; ante, p. 502. Great Western R. Co., L. R. 6 Q. B. 612; s. c. 
 
 - Parmalee i;. Fischer, 22 IlL 212; Dibble 40 L. J. (C. P.) 300; 2-t L. T. (N. S.) 618; 19 
 
 V. Brown, 12 Ga. 217; American Contract Week. Rep. S73; .Mississippi etc. R. Co. v. 
 
 Corp. t!. Cross, 8 Bush, 472; Cincinnati etc. Kennedy, 41 Miss. 671; Toledo etc. R. Co. t;. 
 
 E. Co. v. Marcus, 38 III. 219; Dexter v. Syra- Hammond, 33 Ind. 379; Wilson v. Grand
 
 WHAT IS BAGGAGE. 
 
 511 
 
 Articles which are not. 
 
 making a short trip upon a railway, to recover for bedding packed with his bag- 
 gage, yet it was held in the case of a steerage-passenger upon a sea voyage, wha 
 was bound to provide his own bedding, that a reasonable amount of such arti- 
 cles properly constituted a part of his baggage, and, if lost, was the subject of 
 recovery.' 
 
 § 2. Articles which cannot be considered as Baggage. — From the principle* 
 above set out, it is obvious that there are some articles which are never to be 
 considered as baggage. It has been decided in a multitude of cases that a pas- 
 senger cannot carry merchandise in his baggage, to avoid the payment of freight 
 upon it, and recover for its loss against the carrier.^ And this rale extends ta 
 the samples carried by a travelling salesman while "upon the road." ^ Beyond 
 a small amount sufficient for travelling expenses merely, money, whether in 
 bank-notes or specie, is not properly baggage.* And in some instances it has 
 been held that even small amounts for travelling expenses are not properly 
 packed in baggage.* But the weight of authority is to the contrary.* What 
 is a reasonable amount of money for travelling expenses depends upon the 
 length of the journey, the mode of travel, and the position in life of the pas- 
 senger, and should not exceed what a prudent person would take with him under 
 the circumstances. What such an amount is, is a question for the jury.'' 
 
 Trunk R. Co., 56 Me. 60; Walsh v. Str. H. M. 
 Wright, 1 Newb. Adm. 494; Cadwallader v. 
 Grand Trunk R. Co., 9 Lower Canada Rep. 
 1G9 ; New Orleans etc. R. Co. v. Moore, 40 Miss. 
 ;!9; Pardee v. Drew, 25 Wend. 459. 
 
 1 Hirschsohn v. Hamburgh American Pkt. 
 Co., 2 Jones & Sp. 521. 
 
 - Cahill V. London etc. R. Co., 10 C. B. (n. 
 .«.) 154; 8. c. 7 Jur. (N. S.) 1164; 30 L. J. (C. 
 P.) 289; 9 Week. Rep. 653; 4 L. T. (N. S.) 
 246 (affirmed ou appeal, 13 C. B. (n. s.) 818; 
 
 8 Jur. (N. 8.) 1063; 31 L. J. (C. P.) 271; 10 
 Week. Rep. 391) ; Belfast etc. R. Co. v. Keys, 
 
 9 H. L. Cas. 556; s. c. 8 Jur. (N. s.) 367; 9 
 Week. Rep. 793; 4 L. T. (n. s.) 841; Great 
 Northern R. Co. v. Shepherd, 8 Exch. 30; s. 
 c. 7 Eng. Rail. Cas. 310; 21 L. J. (Exch.) 286; 
 Mississippi etc. R. Co. v. Kennedy, 41 Jliss. 
 671; Collins v. Boston etc. Ji. Co., 10 Cush. 
 506; Dibble v. Brown, 12 Ga. 217; Smith v. 
 Boston etc. R. Co., 44 N. H. 32i'> ; Bell v. New- 
 ton, 4 E. D. Smith, 59; Pardse v. Drew, 25 
 Wend. 459; Hutchings v. Western etc. R. 
 Co., 25 Ga. 61 ; Michigan etc. It. Co. v. Oehm, 
 56111. 293; Michigan etc. R. Co. v. Carrow, 73 
 111. 348; Richards v. Westcott, 2 Bosw. 589; 
 Ross V. Missouri etc. R. Co., 4 Mo. App. 583; 
 Lee V. Grand Trunk R. Co., 36 Upper Canada 
 Q. B. 350; Beckman v. Shouse, 5 R wle, 179; 
 Blumantle v. Fitchburg R. Co., 20 Alb. L. J. 
 304. 
 
 3 Stimpson v. Connecticut River R. Co., 98 
 Mass. 83; Hawkins v. Hoffman, 6 Hill, 586; 
 Ailing V. Boston etc. R. Co., 126 Mass. 121; ». 
 ; . 7 He'«oi-tC'-, f.-^o : 19 .\lb. L. J. 2'li. 
 
 * Phelps V. London etc. R. Co., 19 C. B. 
 (N. 8.) 321; s. c. 11 Jur. (N. S.) 652; 34 L. J. 
 (C. P.)259; 13 Week. Rep. 782; 12 L. T. (N. 
 s.) 496; Butcher v. London etc. R. Co., 
 16 C. B. 13; 1 Jur. (N. S.) 427; 24 L. J. (C. 
 P.) 137; Grant v. Newton, 1 E. D. Smith, 
 95; Whitmore v. Str. Caroline, 20 Mo. 513; 
 Merrill v. Grinnell, 30 N. Y. 594; Bomar 
 V. Maxwell, 9 Humph. 621 ; Doyle v. Kiser, 6 
 Ind. 242; Jordan v. Fall River R. Co., 5 Cush. 
 69; Dunlap v. International Steamboat Co., 
 98 Mass. 371; Dibble v. Brown, 12 Ga. 217; 
 Hellman v. Holladay, 1 Woolw. 365; Hutch- 
 ings V. Western etc. R. Co., 25 Ga. 61 ; Hickox 
 V. Naugatuck R. Co., 31 Conn. 281 ; The Ionic, 
 5 Bhitchf. 538; Senecal v. Richelieu Co., 15 
 Lower Canada Jur. 1 ; Orange County Bank 
 V. Brown, 9 Wend. 85; Davis v. Michigan 
 etc. R. Co., 22 111. 278. 
 
 s Grant v. Newton, 1 E. D. Smith, 95; 
 Davis V. Michigan etc. R. Co., 22 111. 278. 
 
 « Merrill v. Grinnell, .30 N. Y. 594; Bomar 
 V. Maxwell, 9 Humph. 621; Johnson v. Stone, 
 11 Humph. 419; Doyle v. Kiser, 6 Ind. 242; 
 Jordan v. Fall River R. Co., 5 Cush. 69 ; Duffy 
 V. Thompson, 4 E. D. Smith, 178; Weed v. 
 Saratoga etc. R. Co., 19 Wend. 534; Cincin- 
 nati etc. R. Co. V. Marcus, 38 111. 219; Torpey 
 V. Williams, 3 Daly, 162; Hickox v. Nauga- 
 tuck etc. R. Co., 31 Conn. 281; Illinois etc. 
 K. Co. V. Copeland,24 111. .332; Cadwallader 
 V. Grand Trunk R. Co., !) Lower Canada Rep. 
 169; Orange County Bank v. Brown, 9 Wend. 
 
 sa. 
 
 '■ Merrill v. Grinnell, supra; Johnson v
 
 512 passenger's baggage. 
 
 Notes. 
 
 Gold and silver bullion, silver- ware, plate, watches, jewelry, and precious stones, 
 other than what is intended to be worn on the person of the passenger, cannot 
 be considered as baggage. i If the articles are such as are usually worn about the 
 person, there seems to be no reason why they may not be properly packed with 
 his baggage whUe travelling.^ The property of another person cannot be carried 
 as a passenger's baggage ; ^ and this, nowithstanding the other is also a passen- 
 ger upon the same boat.* But where several members of a family are travelling 
 together, it seems that one of them may carry articles which are the property of 
 the others as his baggage.* Articles intended by the passenger as presents to 
 his friends at the end of his journey are not baggage.* A child's toy-horse is 
 not baggage ; ' nor are Masonic regalia, nor engravings ; ^ nor are valuable 
 papers, though carried by a lawyer on his way to court, and intended to be used 
 in the trial of a cause there.* Bedding, as seen above, may sometimes be 
 considered baggage, — as in the case of a steerage-passenger bound to provide 
 his own accommodations for sleeping,i° — but ordinarily such articles should be 
 shipped as freight ; without some such peculiar circumstances, they cannot be 
 considered as within the scope of the carrier's contract with the passenger." 
 Dogs, it seems, are not baggage. But where the passenger placed his dog in 
 charge of the baggageman on a train, and paid for his transportation, without 
 notice of a rule that such fees were baggagemen's perquisites, it was held that 
 he was entitled to recover of the company for the loss of the dog.** 
 
 § 3. Articles which are comprehended tmder the Term " Baggage." — Among 
 the articles of comfort, convenience, instruction, or amusement which a travel- 
 Stone, supra; Jordan v. Fall River R. Co., capro etc. R. Co. v. Boyce, 73 111. 510; Dexter 
 supra; Duffy v. Thompson, supra; Weed v. r. Syracuse etc. R. Co., 42 N. Y. 3'26; First 
 Saratoga etc. R. Co., supra. National Bank v. Marietta etc. B. Co., 20 
 
 1 Bell V. Drew, 4 E. D. Smith, 59; Cincin- Ohio 6t. 200; Mississippi etc. R. Co. v. Ken- 
 nati etc. R. Co. v. Marcus, 38 111. 219; Hell- ncdy, 41 Miss. 671. 
 
 man v. HoUaday, 1 Woolw. 365; Torpey v. ^ Dunlap i;. International Steamboat Co., 
 
 Williams, 3 Daly, 162; The Ionic, 5 Blatchf. 98 Mass. .371. 
 
 538; Walsh v. Str. H. M. Wright, 1 Newb. •• Dexter v. Syracuse etc. R. Co., 42 N. Y. 
 
 Adm 494; Steers v. Liverpool etc. R. Co., 57 326; Curtis v. Delaware etc. R. Co., 74 N. Y. 
 
 K. Y. 1; Nevins v. Bay State Steamboat Co., 116. 
 
 4Bosw. 225; Michigan etc. R. Co. i'. Carrow, ^ Nevins v. Bay State Steamboat Co., 4 
 
 73 111. 348; Cadwallader v. Grand Trunk R. Bosw. 225; The Ionic, 5 Blatchf. 538. 
 
 Co., 9 Lower Canada Rep. 169. ' Hudston v. Midland etc. B. Co., 10 Best 
 
 2 McCormick v. Hudson River R. Co., 4 E. & S. 504 ; s. c. L. R. 4 Q. B. 366. 
 
 D. Smith, 181; McGill v. Rowand, 3 Pa. St. * Nevins v. Bay State Steamboat Co., 4 
 
 451; Jones v. Voorhees, 10 Ohio, 145; Ameri- Bosw. 225. 
 
 can Contract Co. ■;;. Cross, 8 Bush, 472; » Phelps v. London etc. R. Co., 19 C. B. 
 
 Brooke v. Pickwick, 4 Bing. 218; Fraloff v. (N. s.) 321; s. c. 11 Jur. (N. S.) 652; 34 L. J. 
 
 New York etc. R. Co., 10 Blatchf. 16; Torpey (O. P.) 259; 13 Week. Rep. 782; 12 L. T. (N. 
 
 V. Williams, 3 Daly, 162; McDougall v. Tor- s.) 496; Thomas v. Great Western R. Co., 14 
 
 ranee, 4 Lower Canada Jur. 132. Aliter, Upper Canada Q. B. 389. 
 
 Bomar v. Maxwell, 9 Humph. 621; McDou- i** Hirschsohn v. Hamburgh American 
 
 gall V. Allan, 6 Lower Canada Jur. 233; s. c. Packet Co., 2 Jones & Sp. 521. And see 
 
 12 Lower Canada Rep. 321. Ouimit v. Henshaw, 35 Vt. 604. 
 
 s Dunlap v. International Steamboat Co., '' Macrow v. Great Western R. Co., L. B. 6 
 
 98 Mass. 371; Weed v. Saratoga etc. R. Co., Q. B. 612; s. c. 40 L. J. (Q. B.) 300; 24 L. T. 
 
 19 Wend. 534; Becher v. Great Eastern R. (n. S.) 618; 19 Week. Rep. 673; Connolly v. 
 
 Co., L. R. 5 Q. B. 241 ; s. c. 22 L. T. (N. s.) 299; Warren, 106 Mass. 146. 
 
 18 Week. Rep. 627; 39 L. J. (Q. B.) 122; Chi- 12 Cantling v. Hannibal etc. K. Co., 54 Mo. 
 
 385.
 
 . CUSTODY OF THE BAGGAGE. 513 
 
 Delivery to the Carrier — "Booking," "Checking." 
 
 ler may properly cai'ry as baggage, clothing for the passenger has been held to be 
 properly included.^ It is not necessary that the clothes should be ready for use. 
 A quantity of cloth cut up into patterns for garments are wearing apparel within 
 the meaning of the rule.'' The application of the rule seems to be quite liberal 
 in the matter of fire-arms. An early case in Illinois is authority for the doctrine 
 that a pocket-pistol and a pair of duelling pistols are proper articles of baggage 
 for a gentleman. 3 But in a later case the court were of opinion that one revolver 
 was sufficient to protect a grocer going into the country to buy butter.* Guns 
 for sporting purposes are proper baggage for a passenger from Europe to New 
 York.* A few books for amusement on the journey are properly baggage ; ^ and 
 so are manuscript books, the property of a student, and necessary to the prose- 
 cution of his studies.'' But the manuscript of a work intended for publication is 
 not.8 An opera-glass may be included in baggage, although the entire journey 
 be made at night ; ® and so may night-glasses or telescopes, on the presumption 
 that the passenger may reasonably have thought they would be useful to him in 
 the course of an intended voyage across the Atlantic.'" A reasonable quantity of 
 his tools is proper baggage for a mechanic ; '' and so is a case of surgical instru- 
 ments for a surgeon in the United States army travelling with troops. '^ A few 
 cases have arisen as to the baggage of troops transported for the government 
 by a common carrier, but these are sui juris, being governed by special acts 
 and army regulations, and a discussion of them is apart from this subject." 
 
 § 4. Custody of the Baggage — "Booking" and "Checking." — The idea 
 that lies at the foundation of the extraordinary liability of the carrier is that 
 the baggage is in his custody and under his control during transportation. 
 Hence, in order to hold him responsible for its loss, it is material to show that it 
 came into his possession.'* Thus, to charge a carrier with the loss of personal 
 ornaments packed in a trunk with the baggage of the owner, it must satisfac- 
 torily appear that the trunk was not rifled after it was so packed, and before it 
 reached the possession of the carrier.'* 
 
 1 Munsterv. South-EasternR. Co., 4 C. B. '" Cadwallader v. Grand Trunk R. Co., 9 
 (N. 8.) 676; 5. c. 4 Jur. (N. 8.) 738; 27 L. J. (C. Lower Canada Rep. 169. 
 
 P.)308;Duffy«>. Thompson, 4E. D.Smith, 178; " Porter v. Hildebrand, 14 Pa. St. 129; Da- 
 Doyle V. Kiser, 6 Ind. 242; Dibble v. Brown, vis v. Cayuga etc. R. Co., 10 How. Pr. 330. 
 
 12 Ga. 217; Baltimore etc. R. Co. v. Smith, '^ Hannibal etc. R. Co. r. Swift, 12 Wall. 262. 
 
 23 Md. 402. '8 See Hannibal etc. R. Co. v. Swift, 12 
 
 2 Duffy I'. Thompson, 4 E. D. Smith, 178. Wall. 262. In England, "public baggage, 
 8 Woods V. Devin, 13 111. 746. stores, arms," etc., sent by railway in charge 
 * Chicago etc. R. Co. v. Collins, 56 111. 212. of any of her majesty's forces specified in 
 
 See also Davis v. Michigan etc. R. Co., 22 the7and8Vict.,c.85, §12, is "their baggage," 
 
 111. 278. no matter what may be the disproportion be- 
 
 6 Van Horn v. Kermit, 4 E. D. Smith, 4.54. tween the amount of baggage and the num- 
 
 See also Hawkins v. Hoffman, 6 Hill, 586; ber of the force in charge of it, and must be 
 
 Davis V. Cayuga etc. K. Co., 10 How. Pr. carried by the railway company at the rates 
 
 330. inijiosed by that section. 
 
 « Doyle r. Kiser, 6 Ind. 242. n McQuestcn v. Sandford, 40 Me. 117; 
 
 ' Hopkins «;. Westcott, Blatchf. 64. Forbes v. Davis, 18 Texas, 268; Moore w. 
 
 8 Hannibal etc. R. Co. v. Swift, 12 Wall. Str. Evening Star, 20 La. An. 402; Gleason v. 
 
 262. Goodrich Transp. Co., 32 Wis. 85; Michigan 
 
 » Toledo etc. R. Co. v. Hammond, 33 Ind. et(;. K. Co. v. Meyres, 21 111. 627. 
 
 379. '•'' McQuesten v. Sandford, supra. 
 
 '33
 
 514 " passenger's baggage. 
 
 Notes. 
 
 In this country it is customary upon railroads, and sometimes upon steamboats, 
 to give the passenger a bit of brass metal with a number upon it, a duplicate of 
 which is attached to his baggage. This is called a baggage-" check," audits 
 delivery is primd, facie evidence that the carrier has received the baggage which 
 it represents.* Such evidence, of course, may be overcome by proof to the 
 contrary ; but the burden of proof under such circumstances is upon the carrier 
 to show non-delivery.2 And it is immaterial at what time the baggage comes 
 into the possession of the carrier, — whether at the time the check is issued or 
 subsequently. In either case its liability as an insurer becomes fixed in case of 
 loss.* The effect and extent to which a baggage-check is evidence is well illus- 
 trated by a case where it appeared that a railway company received a passenger's 
 check for baggage which had not then arrived by another road, and gave its own 
 check for the same, and that it had surrendered the passenger's first check to the 
 other railway company. The court held this sufficient, in the absence of proof 
 to the contrary, to show that the baggage was received by the company so sur- 
 rendering the first check.* 
 
 But the delivery of a check is not the only, or necessarily the best, evidence of 
 the receipt of the baggage. With the assent of the carrier, the baggage of trav- 
 ellers may be left at a railway station without notice to it or its agents ; such 
 assent may be implied from the course of business or custom of the carrier.* 
 And though a regulation of the carrier may require that the baggage of passen- 
 gers must be checked, yet the carrier cannot avail himself of a failure to comply 
 with this regulation if it appears that, at the time of the delivery of the baggage 
 to the carrier's agent, the passenger demanded a check, and failed to receive it 
 because the person whose duty it was to check baggage was not present.* A 
 corresponding rule obtains in England, where a system of "booking" baggage 
 supplies the place of the checking system of this country. It was held, in an 
 action for lost baggage, that a railway company could not take advantage of a 
 failure of the passenger to comply with a by-law of the company requiring bag- 
 gage to be " booked," in the absence of evidence that the company had provided 
 the means for booking of baggage.' 
 
 What constitutes a delivery of baggage is to a great extent a question of fact, 
 to be determined by the jury.^ In a case where the only evidence of delivery 
 was that the witness, in whose care the plaintiff came as a passenger, caused the 
 plaintiff's trunk to be placed on board the steamer in New Orleans a short time 
 before her departure, and the jury were instructed by the court that to charge the 
 defendant (the master of the steamer) it must be shown to their satisfaction that 
 the trunk was delivered to the defendant, or to the purser of the steamer, or to 
 
 1 Davis V. Michigan etc. R. Co., 22 111. 278; s Green v. Milwaukee etc. R. Co., 38 Iowa, 
 Chicago etc. R. Co. v. Clayton, 78 111. 616; 100. See also Minter v. Pacific R. Co., 41 Mo. 
 Check V. Little Miami R. Co., 2 Disney, 238; 503; Najac v. Boston etc. R. Co., 7 Allen, 329; 
 Davis V. Cayuga etc. R. Co., 10 How. Pr. 330; Camden etc. R. Co. i;. Belknap, 21 Wend. 354. 
 Atchison etc. R. Co. v. Brewer, 20 Kan. 669. « Freeman v. Newton, 3 E. D. Smith, 246. 
 
 2 Chicago etc. R. Co. v. Clayton, 78 111. 616. See also Hickox v. Naugatuck R. Co., 31 
 
 * Chicago etc. R. Co. v. Clayton, supra. Conn. 281. 
 
 * Chicago etc. R. Co. v. Clayton, supra. ' Great Western R. Co. v. Goodman, 12 C. 
 See also Davis v. Michigan etc. R. Co., 22 B. 313; s. c. 16 Jur. 862; 21 L. J. (C. P.) 197. 
 Dl. 278; Kansas Pacific R. Co. v. Montelle, « Dibble u. Brown, 12 Ga. 217; Flaherty*. 
 10 Kan. 119. Green man, 7 Daly, 481.
 
 CUSTODY OF THE BAGGAGE. 515 
 
 Theft while in Control of Passenger. 
 
 some other person authorized to receive it on the part of the steamer, and the jury 
 found for the plaintiff, the court above refused to reverse the judgment on the 
 ground that the evidence was insufficient to show delivery of the trunk to the 
 employees of the steamer.^ In a case where a portmanteau was left outside of the 
 cabin on a steamboat, one of the employees of the boat saying that it would be safe 
 there, these facts were held to be sufficient to charge the owner of the boat with 
 its loss.2 But where a passenger by railway entered a car just before the train 
 started, left his valise on a vacant seat and went out, and upon his return found the 
 valise was gone, and it did not appear that any one was in charge of the train at 
 the time, the court held that there was no sufficient delivery of the valise to the 
 defendant.^ Nor, in another case, was the defendant liable for the loss of a 
 trunk said to contain a large sum of money, which the plaintiff left in charge of 
 the baggage-keeper contrary to the advice and instructions of the captain of the 
 steamer, who indicated the office as the proper place of deposit, the plaintiff 
 stating at the time, in answer to the captain, that he would take care of the trunk 
 himself.* Mere voluntary assistance by the agents of the company in looking 
 for lost baggage, or an offer by way of gi-atuity to pay on account of it, is not 
 such evidence that the baggage was ever in their possession as to render a rail- 
 road company liable for its loss.* 
 
 But where the route for which the ticket is sold and the check given extends 
 over several connecting lines of railway, a check given by one of them will not be 
 evidence against any of the roads except the one issuing the check, although the 
 names of all of them be stamped upon it.^ But the relations, duties, and liabili- 
 ties of connecting lines of railway are more fully discussed elsewhere in this 
 work, under the head of Connecting Lines,' to which the reader is referred. 
 
 § 5. Baggage under the Personal Control of the Passenger — Theft of. — 
 An essential element of the extraordinary liability of innkeepers and common 
 carriers is the custody of the property of the guest, shipper, or traveller, as the 
 case may be. Questions as to the effect of the owner's assumption of the cus- 
 tody of the goods while in the hands of the carrier or innkeeper, upon the legal 
 liability of the latter, arose very early in England. The cases exhibit a conflict 
 of authority. Thus, we find it decided that the East India Company, which was 
 accustomed, in unloading goods from their vessels, to send an officer along in the 
 lighter, who, as soon as the lading was taken, put the company's lock on the 
 hatches and went with the goods to see them safely delivered at the warehouse, 
 could not under such circumstances recover of the lighterman for a part of the 
 goods which were lost.^ And an innkeeper was held not to be liable for goods 
 which were lost out of a private room of the inn, chosen by his guest for the 
 exhibition of the goods to his customers, after he had informed his guest that 
 there was a key to the room by which he might lock the door, which the guest 
 neglected to do.» 
 
 1 Forbes v. Davis, 18 Texas, 268. * Michigan etc. R. Co. v. Meyres, 21 111. 627. 
 
 2 Bankier v. Wilson, 5 Lower Canada Rep. " Kcssler v. New York etc. R. Co., 61 N. Y. 
 203. 538 ; s. c. 1 Abb. N. C. 549 ; 7 Lan.s. 62 ; Fursten- 
 
 3 Kerr v. Grand Trunk R. Co., 24 Upper heim v. Memphis etc. R. Co., » Heisk. 238. 
 Canada C. P. 209. ' ^n^e.Chap. XIII. 
 
 ■* Senecal v. Richelieu Co., 15 Lower Can- » Kast India Co. v. Pullen, Slni. 690. 
 
 ada Jur. 1. ■ Burgess v. Clenieuts, 4 Man. & Sel. 305.
 
 5*1 G passenger's baggage. 
 
 Notes. 
 
 But in the case of Bobinson v. Dunmore ^ the court held that if A. sends goods 
 by B., who says, " I will warrant they shall go safe," B. is liable if they are lost 
 or injured, notwithstanding A. sends one of his own servants in B.'s cart to look 
 after them. The court endeavored to distinguish this case from that of East 
 India Company v. Pullen, cited above, by saying that that company never intrust 
 their goods to a lighterman, but give the whole charge of their property to one 
 of their officers, who is called a guardian. But in view of the facts of the two 
 cases, this distinction appears more ingenious than real. Calye''s Case ^ is author- 
 ity for a corresponding doctrine with reference to innkeepers. 
 
 A recent and well-considered case,^ in which all the authorities are reviewed at 
 length, applies, in a slightly modified form, the doctrine of East India Company 
 V. Pullen to the case of a passenger who takes his portmanteau with him into a 
 railway carriage. The court say: "It is obvious, at least with respect to arti- 
 cles which are not put in the usual luggage-van and of which the entire control 
 is not given to the carrier, but which are placed in the carriage in which the pas- 
 senger travels, so that he and not the company's servants has de facto the entire 
 control whilst the carriage is moving, the amount of care and diligence reason- 
 ably necessary for their safe conveyance is, in fact, considerably modified by the 
 cii'cumstance of their being, during that part of the journey in which the passen- 
 ger might under ordinary circumstances be expected to be in the carriage, in- 
 tended by both parties to be under his personal inspection and care. To such a 
 state of things the rule which binds common carriers absolutely to insure the 
 safe delivery of the goods, except against the act of God or the queen's ene- 
 mies, whatever may be the negligence of the passenger himself, has never, that 
 we are aware of, been applied.* * * * There is great force in the argument 
 that where articles are placed, with the assent of the passenger, in the same car- 
 riage with him, and so in fact remain in his own control and possession, the 
 wide liability of the common carrier which is founded on the bailment of the 
 goods to him, and his being intrusted with the entire possession of them, should 
 not attach, because the reasons which are the foundation of the liability do not 
 exist. In such cases, the obligation to take reasonable care seems naturally to 
 arise ; so that when loss occurred, it would fall on the company only in the case 
 of negligence in some part of the duty which pertained to them." * 
 
 Some limitations of this rule are very clearly expressed by the English Court 
 of Queen's Bench in the case of Le Conteur \\ London, etc. Railway Company, 6 
 There, the passenger carried with him a chronometer, which by his direction the 
 railway porter placed upon his seat in the carriage. He then went to look after 
 the rest of his luggage, and returned after an absence of ten or fifteen minutes, 
 when the chronometer was missing. Upon these facts, Cockburn, C. J., said : 
 " When the case was first opened, I had imagined that the facts were such as to 
 lead to the necessary inference that the plaintiff had taken possession of the 
 chronometer, withdrawing it from the custody of the company and keeping it 
 
 1 2 Bos. & Pul. 419. L. J. 222 ; 18 Alb. L. J. 32 ; 3 C. B. Div. 221 ; 
 
 2 8 Co. 63. 38 L. T. (N. S.) 160; Glover v. London etc. 
 
 3 Talley v. Great Western R. Co., L. R. b R. Co., L. R. 3 Q. B. 25. 
 
 C. P. 44. 4 Id. 51. 6 L. R. 1 Q. B. 54; s. c. 35 L. J. (Q. B.) 40; 
 
 £■ Id. 52. See also Bergheim t,'. Great East- 12 Jur. (n. s.) 266; 14 Week. Rep. 80; 13 L. T. 
 em R. Co., 17 Am. L. Reg. 779; s. c. 6 Cent. (N. S.) 325.
 
 CUSTODY OF THE BAGGAGE. 517 
 
 Theft while in Control of Passenger. 
 
 in his own personal custody and charge ; but I think my first impression was 
 incorrect. I think it appears that what took place was this : that by the desire 
 of the plaintiff, the porter of the company placed this article in a carriage In 
 which a particular seat was to be appropriated to the use of the plaintiff. I am 
 very far from saying that there may not in these cases sometimes be a state 
 of circumstances in which a passenger who has luggage which, by the terms of 
 the contract, the company are bound to convey to the place of destination along 
 with him, may not release the company from their obligation as carriers for 
 the safe custody of the article, by taking it into his own personal custody and 
 charge. But I think the circumstances must be strong to relieve the company 
 from their liability. It is not because the article that is part of the passenger's 
 luggage to be conveyed with him is, by the joint consent of the passenger and 
 the company, placed in a carriage with him that the company are necessarily 
 released from their obligation to carry safely. Nothing could be more incon- 
 venient than that the practice of placing small articles which it is convenient to 
 the passenger to have with him in the carriage in which he is about to ride 
 should be discontinued ; and if the company were, from the mere fact of articles 
 of this description being placed in a carriage with a passenger, to be at once 
 relieved from the obligation of safely carrying such articles, it would follow 
 that no one who has occasion to leave the carriage temporarily would be able 
 to have them with him with any degree of safety. I cannot think, therefore, 
 we ought to come to any conclusion which would relieve the company, under 
 such circumstances, from the obligation as carriers to cany the luggage safely, 
 which for general convenience ought certainly to attach to them. I cannot help 
 thinking, therefore, we ought to require very special circumstances indeed, and 
 circumstances leading irresistibly to the conclusion that the passenger takes 
 such personal control and charge of his luggage as to altogether give up all hold 
 upon the company, before we can say that the company, as common carriers, 
 would not be liable in the event of the loss." 
 
 This language is an excellent expression of the doctrine of the American 
 cases, though it must be confessed that it is very difficult to draw the line of 
 demarcation between those circumstances which will be considered an assump- 
 tion of the charge of his baggage, animo custodiendi, by a passenger, and those 
 which indicate merely a desire to avail himself of personal conveniences which 
 he carries in it, without assuming custody of it for safe-keeping. In a Wis- 
 consin case, a traveller deposited his valise in a state-room of a steamer while he 
 went to get his trunk checked. He asked for a key to the state-room, but was 
 informed that they gave no keys, and put his valise in the unlocked state-room, 
 calling the attention of two or three cabin or saloon boys to it, and ^sked their 
 opinion as to whether it would be safe. Receiving an affirmative answer, he 
 went away. The valise, during his absence of about three-quarters of an liour, 
 was lost or stolen. The court held that there was not a sufficient delivery into 
 the custody of the carrier to charge him for the loss.' There is a similar ruling 
 in a recent Pennsylvania case.^ 
 
 Where the jewelry usually worn by two ladies as a part of their apparel was 
 
 ' Gleason v. Gooflrich Transp. Co., 32 Wis. " American Steamship Co. v. Bryan, 83 Pa. 
 
 85. Compare Kinsley v. Lake Shore etc. R. St. 446. 
 Co., 19 Alb. L.J. 113.
 
 oly passenger's baggage. 
 
 Notes. 
 
 left by them in a carpet-bag in their state-room on a steamboat, and was stolen 
 while thej' were at supper, the court held that the boat was not liable for the 
 loss.i "Where the plaintiff, a German emigrant and steerage-passenger from 
 Liverpool to New York, took his trunk with him into the steerage and placed it 
 under his bed, and fastened it with ropes to his berth, the court considered that 
 his conduct in relation to it plainly indicated that he relied upon his own care and 
 vigilance to protect himself against loss, and refused to hold the carrier liable 
 when it appeared that during a violent storm the ropes were cut and the trunk 
 stolen.^ But several cases have held that taking his baggage with him to his 
 state-room on a steamboat is not such an assumption of custody on the part of 
 the passenger as will relieve the carrier from liability for its loss.' 
 
 The Supreme Court of the United States held, in a case where the baggage, 
 stores, etc., of a body of troops was transported, and the soldiers went along 
 with it for the purpose of guarding it against the attacks of guerillas, that such 
 cii'cumstances would not relieve the railway company from a loss consequent 
 upon fire.* 
 
 Where the assumption of custody on the part of the passenger is only partial, 
 and the baggage comes again into the hands of the carrier's servants before the 
 final delivery to the passenger, and is then lost, the carrier is responsible for 
 the loss. Thus, in a case where a lady was a passenger by railway, and her 
 dressing-case was put under her seat in the railway carriage, and upon arrival at 
 her destination the porters of the company took upon themselves the duty of 
 carrying her luggage to the hackney coach which was to convey her to her 
 residence, and the dressing-case was lost, the court held that the duty of the 
 carrier continued until the luggage was placed in the hackney carriage, and that 
 the plaintiff was entitled to recover for the loss." 
 
 The fact that the passenger retains custody of his baggage relieves the carrier 
 of his extraordinary liability as insurer only. For all losses consequent upon 
 the negligence of the carrier or his servants he still remains liable.* Thus, a 
 passenger upon the defendant's steamship had his baggage in his state-room, 
 which was kept open, according to the custom of the vessel, for purposes of 
 ventilation; the state-room opened into a passage-way, which in turn opened 
 into the cabin. A light was always kept burning and a watchman on duty at 
 night in the cabin. The duty of keeping watch was performed by the stewards 
 and waiters of the vessel, and was in addition to their daily duties. The watch- 
 man on duty was required by the rules to report every hour to the officer on the 
 
 1 The R. E. Lee, 2 Abb. O. C. 49. See also 237; Gore v. Norwich etc. Transp. Co., 2 
 DelValle v. Str. Richmond, 27 La. An. itO; Daly, 254; Walsh r. Steamboat H. M. Wright, 
 Williams r. Keokuk etc. Packet Co., 3 Cent. 1 Newb. Adm. 494; Mudgett v. Bay State 
 L. J. 400; Steamboat Crystal Palace v. Van- Steamboat Co., 1 Daly, 151. 
 
 derpool, 16B. Mou. 302; Tower v. Utica etc. •* Hannibal etc. R. Co. v. Swift, 12 Wall. 
 
 R. Co., 7 Hill, 47; Weeks v. New York etc. R. 262. 
 
 Co., 72 N. Y. 50; s. c. 6 Reporter, 54; 17 Am. » Richards v. London etc. R. Co., 7 C. B. 
 
 L. Reg. 506; Abbott v. BradBtreet,55 Me. 530; 839; s. c. 6 Eng. Rail. Cas. 49; 13 Jur. 9S6; IS 
 
 Clark V. Burns, 118 Mass. 275. L. J. (C. P.) 251. See also Butcher v. London 
 
 2 Cohen v. Frost, 2 Duer, 335. See also etc. R. Co., 16 C. B. 13. 
 
 Welch V. Pullman Palace-Car Co., 16 Abb. « American Steamship Co. v. Bryan, 83 Pa. 
 
 Pr. (N. s.) 352. St. 446; Kinsley v. Lake Shore etc. R. Co., 19 
 
 3 Macklin V. New Jersey Steamboat Co., 7 Alb. L. J. 113; Williams v. Keokuk etc. 
 Abb. Pr. (N. S.) 229; s. c. 9 Am. L. Reg. (N. s.) Packet Co., 3 Cent. L. J. 400.
 
 LIABILITY AS BAILEE OE WAREHOUSEMAN. 519 
 
 Respondeat Superior. 
 
 bridge. The passenger's two valises were stolen from his room while he was 
 asleep. It appeared that on the night in question the watchman, while reporting 
 at the bridge, had stopped to get a cup of coffee ; and that state-rooms on both 
 sides of the cabin were robbed on the same night. There was slight evidence 
 tending to show that the theft was committed by a passenger. In an actiou 
 against the carrier to recover the value of his lost baggage, the jury found a ver- 
 dict for the plaintiff, subject to a reserved point as to whether there was any 
 evidence of negligence. The court held that these facts were evidence of negli- 
 gence to go to the jury.i 
 
 § 6. Articles received in other Capacity than as a Carrier. — In order to 
 hold the carrier to his liability as such for the loss of baggage, it must appear 
 not only that the baggage came into his custody, but that it was so received in 
 discharge of his public functions as a common carrier. In England there is 
 sometimes attached to a railway station a " cloak-room," as it is called, for the 
 convenience of the public in depositing for temporary safe-keeping such small 
 articles as travellers carry about with them. It has been held that the railway 
 company is liable for the loss of such articles only as a bailee for hire, and not as 
 a carrier.'^ 
 
 In this country, where, upon the conclusion of a journey, the passenger's bag- 
 gage is at his request kept overnight in a warehouse of the carrier, it has been held 
 that the responsibility of the carrier for such baggage is that of a warehouseman, 
 and not that of a carrier.* In another case where the plaintiff presented his bag- 
 gage, the baggage -master, in accordance with a rule of the defendant, declined 
 to check his baggage until the passenger procured passage-tickets. During the 
 plaintiff 's absence for this purpose, the baggage-master caused the baggage to be 
 placed in the car, and upon his return refused to give the plaintiff a check until 
 he paid for the extra weight. The plaintiff refused to pay, and demanded his 
 baggage, which the baggage-master declined to deliver, because, being covered 
 with other baggage, it was impossible to reach it without delaying the train. The 
 plaintiff declined to take passage without his checks, and the baggage was car- 
 ried through to Chicago, where, the night after its arrival, it was destroyed by 
 fire. The action was for its conversion, and the court held that the relation of 
 the parties was not that of common carrier and passenger; that the defendant 
 could not avail itself of any of the rules which have been established as to the 
 liabilities of carriers ; and that the defendant was responsible for the act of its 
 servant in withholding the plaintiff's property.* 
 
 §7. A Question of Respondeat Superior. — Questions of agency sometimes 
 arise in this connection. The general rule is, that whomsoever the carrier per- 
 
 1 American Steamship Co. V.Bryan, 83 Pa. Div. 41C. A packet or sealed letter, with 
 St. 446. bank-notes enclosed, delivered by a passeu- 
 
 2 Van Toll V. South-EasternR. Co.,12C. B. ger to the clerk of a steamboat for safe 
 (N. 8.) 75; 8. c. 31 L. J. (C. P.) 241; 8 Jur. (N. keeping, is siinidy a contract of deposit 
 8.) 1213; 10 Week. Ptep.578; 6 L. T. (N. S.) 244; between them, in which the depositary is 
 Stallard v. Great Western R. Co., 2 Best & S. only resiionsible for ordinary care. Wilcox 
 419; 8. c. 8 Jur. (N. S.) 1070; 31 L.J. (Q. 15.) r.The Philadeli)hi!i, !l I.a. 80. 
 
 137; 10 Week. Rep. 488; L. T. (N. S.) 217; " Pike v. Chicago etc. R. Co., 40 Wis. 683. 
 
 Harris v. Great Western R. Co., 1 Q. B. Div. * McCormick v. Penn. etc. R. Co., 49 N. Y. 
 
 ^l.'i; Parker r. .South-Eastern R. Co., 2 C. P. 303.
 
 520 passengek's baggage. 
 
 Notes. 
 
 mits to assume and perform liis duties with reference to passengers' baggage, 
 is to that extent and for that purpose to be regarded as his agent, and the carrier 
 is accordingly held liable for his default and neglect. Thus, a porter on a steam- 
 boat, whose habit it was to take charge of passengers' baggage, though not one 
 of the boat's crew nor paid by the boat, but receiving his compensation from pas- 
 sengers, was nevertheless held to be the agent of the cari'ier for the care of such 
 baggage, and the latter was accordingly liable for the loss of baggage while in his 
 custody and charge. ^ And where a passenger upon a railway delivered his bag- 
 gage into the charge of the conductor or porter of a sleeping-car, and it was lost, 
 the carrier was not permitted to defend on the ground that the car was owned 
 and the servants employed by a third party and not by the defendant, because it 
 did not appear that the passenger was aware of these facts.'' 
 
 The commissioners of emigration of the State of New York, not being engaged 
 or interested in the transportation of passengers or baggage, or in the care of 
 baggage after it is landed, and having no agents who are so engaged, are not 
 responsible for the loss of baggage delivered by an emigrant on board a ship in 
 the harbor of New York to the crew of a tug-boat, to be transpoi'ted to Castle 
 Garden. The licensing of the owners or captains of steamboats, etc., to receive 
 and land passengers and their baggage, and of persons to solicit emigrant pas- 
 sengers and baggage for boarding-houses and transportation lines, by the com- 
 missioners of emigration, does not make the licensed persons the agents of the 
 commissioners, or render the latter responsible for their good conduct.^ 
 
 A similar conclusion was reached in an English case. A cab, running in the 
 usual way in the streets of London, was hired by a person to carry his baggage. 
 The baggage was lost through the fault of the driver. On the cab was the name 
 of the defendant as proprietor of it, which he was in fact. But a third person^ 
 a licensed driver, was driving at the time. On the trial, it appeared that the 
 driver each day paid a sum of money to the proprietor for the use of the cab 
 and two horses for the day, and then made what he could by the use of the cab 
 and horses. The court held that the driver must be taken to be the agent of the 
 proprietor, with authority to make contracts for the employment of the cab on 
 his account, and consequently that the action was rightly brought against the 
 proprietor.* 
 
 § 8. The Contract in Respect ol the Carriage of Baggage — A Carrier of 
 Passengers is responsible as a Common Carrier for the Safe Carriage of Bag- 
 gage. — The contract to carry a passenger includes the obligation to carry such 
 articles as are properly comprehended under the term " baggage," or, as it is 
 called in the English books, " luggage," without extra charge.* But there are 
 
 » Perkins v. Wright, 37 Ind. 27. See also * Powles v. Hider, 6 El. & Bl. 207; «. c. 2 
 
 Torpey v. Williams, 3 Daly, 162; Jordan v. Jur. (N. s.) 472; 25 L. J. (Q. B.) 331. 
 
 Fall River R. Co., 5 Cush. 69; Ouimit v. Hen- s Orange County Bank v. Brown, 9 Wend. 
 
 ~haw, 35 Vt. 604; Blairi;. ErieR. Co.,66N. T. 85; Peixotti v. McLauglilin, 1 Sti-obh. 468; 
 
 313. Woods V. Devin, 13 HI. 746; Merrill v. Grin- 
 
 2 Kinsley V. Lake Shore etc R. Co., 19 Alb. nell, 30 N. Y. 594; Chicago etc. R. Co. «v 
 L. J. 113. See, in this connection, Thorpe v. Fahey, 52 El. 81; Cincinnati etc. R. Co. v. 
 New York etc. R. Co., 13 Hun, 70; s. c. 19 Marcus, 38 111. 219; Hannibal etc. R. Co. v. 
 Alb. L. J. 471. Swift, 12 Wall. 262 ; Fairfax i: New York etc. 
 
 3 Murphyt). Commissioners of Emigration, R. Co., 5 Jones & Sp. 516; The Elvira Har- 
 28 N. Y. 134; Semler v. Commissioners of beck, 2 Blatchf. 336; Glasco v. New York etc. 
 Emigration, 1 Hilt. 244. R. Co., 36 Barb. 557; Perkins r. Wright, "7
 
 COMMON-LAW LIABILITY FOR. 
 
 521 
 
 Liable as an Insurer. 
 
 two distinct measures of. responsibility which are applicable to the functions of 
 the carrier as to the person of the passenger and his baggage. A passenger- 
 carrier is not liable as an insurer for any injury which the person of the traveller 
 may sustain while in his hands ; but a carrier of goods, with the familiar excep- 
 tions, incurs an absolute responsibility for the safety of the goods which are 
 committed to his care, or is responsible in the same degree as an innkeeper is 
 for the safe-keeping of the property of his guest. The reason is plain. The 
 carrier of goods and the innkeeper have opportunities and temptations for theft, 
 robbery, or combinations with thieves which are practically unlimited, and there- 
 fore the policy of the law requires that they should be held answerable for all 
 loss or damage to the property committed to their charge, without reference to 
 the question of the degree of care actually exercised by them, unless such loss 
 proceed from " the act of God or the king's enemies." i 
 
 The reasons of this rule are inapplicable to carriers of passengers, and there- 
 fore the carrier is not responsible for an injury to the person of the passenger 
 unless it be shown to have resulted in some way from the carrier's negligence.^ 
 But with reference to the baggage of the passenger the position in which the 
 carrier is placed is practically the same as that of the common carrier in regard 
 to goods intrusted to his charge ; and for this reason the former is liable to the 
 same extent for the safe carriage and delivery of the baggage of passengers 
 received by him, notwithstanding the fact that he receives therefor no compensa- 
 tion beyond the fare of the passenger.^ But to entitle the plaintiff to have his 
 
 Ind. 27; Hutchings v. Western etc. R. Co., 25 
 Ga. 61; Hirschsohn v. Hamburg etc. Packet 
 Co., 2 Jones & Sp. 521; Mississippi etc. R. 
 Co. V. Kennedy, 41 Miss. 671 ; Wilson v. Grand 
 Trunk R. Co., 56 Me. 60; Smith v. Boston etc. 
 R. Co., 44 N. H. 325 ; PoweU v. Myers, 26 Wend. 
 591; Camden etc. R. Co. v. Burke, 13 Wend. 
 611; Pardee v. Drew, 25 Wend. 4.59. 
 
 1 Coggs V. Bernard, 1 Smith's Ld. Cas. 283; 
 ». c. 2 Ld. Raym. 909. 
 
 2 Camden etc. R. Co. v. Burke, 13 Wend. 
 611. 
 
 * Orange County Bank v. Brown, 9 Wend. 
 85; Peixotti v. McLaughlin, 1 Strobh. 468; 
 Woods V. Devin, 13 111. 746; Hawkins v. 
 Hoffman, 6 Hill, 586; Merrill v. Grinnell, 30 
 N. Y. 594; Bomar v. Maxwell, 9 Humph. 
 621 ; Chamberlain v. Western Transp. Co., 45 
 Barb. 218; Camden etc. R. Co. v. Burke, 13 
 Wend. 611 ; Bayliss v. Lintott, L. R. 8 C. P. 
 345; s. c. 42 L. J. (C. P.) 119; 28 L. T. (N. 8.) 
 666; Blossman v. Hooper, 16 La. An. 160 
 Chicago etc. R. Co. v. Fahey, 52 111. 81 
 Dill V. South Carolina R. Co., 7 Rich. 158 
 Dibble V. Brown, 12 Ga. 217; Hannibal etc. 
 R. Co. V. Swift, 12 Wall. 262; Fairfax v. New 
 York etc. R. Co., 5 Jones & Sp. 516; The El- 
 vira Harbeck, 2 Blatchf. 336; Glasco v. New 
 York etc. R. Co., 36 Barb. 557; Perkins v. 
 Wright, 37 Ind. 27; Moore v. Str. Even- 
 ing Star, 20 La. An. 402; Wilson v. Chesa- 
 
 peake, 21 Gratt. 654. In two of the earliest 
 cases on this subject a contrary rule was de- 
 clared. In the case of Middleton v. Fowler, 
 1 Salk. 282, determined in 1699, Lord Holt 
 said that an action would not lie against the 
 owner of a stage-coach for the loss of the 
 trunk of a passenger, because nothing was 
 paid for the carriage of the trunk as distinct 
 from the passage-money of the traveller. A 
 similar view prevailed also in Upshare v. 
 Aidee, 1 Comyns 25, determined in 1697. A 
 decision of the New York Court of Common 
 Pleas goes to the other extreme. The action 
 was against a street- car company for the 
 loss of a satchel which was inadvertently 
 left in one of the defendants' cars and in 
 pursuance of a regulation of the company 
 was carried to the depot of the company and 
 placed in the hands of tlie receiver of the 
 road, whose duty it was to keep it for the 
 owner. He delivered it to a person who 
 was not the owner of it, who demanded it, 
 saying it was the |)roperty of her mistress. 
 The court, while admitting that the contract 
 for carriage in this instance did not involve 
 the obligation to carry such articles, nor the 
 extraordinary liability for their safe-keeping 
 which the law imijoses upon passenger- 
 carriers with respect to baggage, held that 
 the defendants were nevertheless liable, be- 
 cause they had by a general regulation made
 
 o22 passenger's baggage. 
 
 Notes. 
 
 personal baggage thus carried, it is necessary that he should travel upon the same 
 train with his baggage. If he intrusts it to another, as where a gentleman 
 directed his servant to take his portmanteau by one train and he himself followed 
 upon another, this portmanteau was considered as being the baggage of neither, 
 and therefore neither could recover for its loss.i And whei'e a person took pas- 
 sage in a vessel and his baggage did not reach him in season to go with him, but 
 was sent after him in another vessel, and a bill of lading given for it by the 
 mate, the court held the case to be precisely similar to that of a shipment of 
 goods ; that the owner of the second vessel would have a lien for his freight, and 
 in case of the loss of the baggage would be liable, not merely as a gratuitous 
 bailee, but as a common carrier.^ This rule, however, has not been universally 
 applied. Where the passenger pays his fare, and if for any reason the baggage 
 does not arrive in time to go with him on the same train, and the carrier under- 
 takes to forward it on the next, it has been held that he is liable for its loss, as a 
 carrier.^ 
 
 § 9. Responsibility for Extra Baggage. — For the carriage of articles which 
 accompany the passenger's baggage, but are not such as are properly included 
 in the term, or such as are in excess of the amount established by law or charter 
 regulations as the limits of a passenger's baggage, the carrier is entitled to 
 demand and receive a special compensation in addition to the fare paid by the 
 passenger for the carriage of his person. Where such additional compensation is 
 paid for the carriage of the extra baggage, the carrier is responsible for such bag- 
 gage in the same manner and to the same extent as the carrier of goods.* But 
 where articles which are not properly baggage are packed with it, whether through 
 the ignorance of passengers or with a purpose to evade the payment of additional 
 charges, and the baggage is received by the carrier without a knowledge of the 
 contents, there is no liability on his part for such articles in case of loss of 
 the baggage. The agreement on the part of the carrier is to carry the pas- 
 senger and his baggage ; as to articles which are not baggage properly, there 
 is no contract whatever between them. In cases where such articles are car- 
 ried in the baggage of the passenger for the purpose of avoiding the payment 
 of extra charges, such circumstances constitute an actual fraud upon the car- 
 rier. It is therefore plain that the carrier is not liable for the value of such 
 articles when lost with the baggage of a passenger.* 
 
 it a part of the duty ol their agents to take Iowa, 166; Flaherty v. Greenman, 7 Daly, 
 
 charge of property inadvertently left in 481. 
 
 their cars, and provided at their depot a * Sloman v. Great Western R. Co., 67 X. 
 
 place for its safe-keeping where the owner Y. 208; s. c. 6 Hun, 546; 3 Abb. N. U. 57-2; 
 
 might apply for it, and thus assumed the Helhnan v. Holladuy, 1 Woolw. 365; Glaso 
 
 responsibility to deliver it to such person. v. Xew York etc. R. Co., 36 Barb. 557; Dibble 
 
 Morris v. Third Avenue R. Co., 1 Daly, 203. v. Brown, 12 Ga. 218; Camden etc. R. Co. r. 
 
 ' Becher v. Great Eastern R. Co., L. R. 5 Baldauf, 16 Pa. St. 67; Stoneman v. Erie li. 
 
 Q. B. 241; s. c. 22 L. T. (N. S.) 299; 18 Week. Co., 52 N. Y. 429. 
 
 Rep. 627; 39 L. J. (Q. B.) 122. s Belfast etc. R. Co. v. Keys, 9 H. L. Cas. 
 
 = The Elvira Harbeck, 2 Blatchf. 336. See 550; Hellman r. Holladay, 1 Woolw. 367; 
 
 also GrafiFam v. Boston etc. R. Co., 67 Me. Great Northern R. Co. v. Shepherd, 7 Eng. 
 
 234; Wilson v. Grand Trunk R. Co., 56 Me. Rail. Cas. 310; s. c. 8 Exch. 30; 21 L.J. (Exch.) 
 
 60; s. c. 57 Me 138. 286 ; Doyle v. Kiser, 6 Ind. 242 ; Nevins v. Bay 
 
 '<> Warner v. Burlington etc. R. Co., 22 State Steamboat Co., 4 Bosw. 225; CahUl r.
 
 EXTRA BAGGAGE. 
 
 623 
 
 Mistakes as to Contents of Parcel. 
 
 The correctness of this conclusion is not affected by the dictum in a Pennsyl- 
 vania case. It was there remarked that " neither concealment nor fraud can be 
 imputed to the plaintiff. He was not bound to disclose the nature or value 
 of the goods, unless inquired of by the carrier, in which case he must answer 
 truly." ' As to the authorities cited in support of this position, one of the 
 cases ^ is not in point. It was an action for the loss of a trunk which contained 
 articles of baggage proper only, and turned upon the question of whether notice 
 of a regulation of the carrier as to value was brought home to the passenger. 
 The other two were cases of the liability of common carriers of goods,' and 
 obviously inapplicable to the case of the carriage of such articles without extra 
 charge. It is evident that this rule applies only to those cases where the carrier 
 is not aware of the presence of such additional articles in the baggage. If he is 
 notified of the fact, or if they are carried openly, or so packed that their nature 
 is obvious, and the carrier accepts them for carriage without objection, the law 
 presumes an undertaking on his part to carry them as baggage, and he will be 
 liable for their loss as if they were properly baggage.* 
 
 But in order to make the company liable under such circumstances, the facts 
 must be such as to leave no room for mistakes. The package must be such as 
 to obviously indicate that its contents are not baggage. Thus, where a traveller 
 carried with him a box covered with a black leather case, on the top of which was 
 painted in the centre, lengthwise, his name, in white letters about two inches 
 long, and on each end of which was painted the word "glass," also in white 
 letters about two inches long, and which had around it two black leather straps 
 between the words "glass," it was held that the appearance of the box did not 
 so plainly indicate that its contents were merchandise as to render the plaintiff 
 liable for its loss. Erle, C. J., said: " It seems to me that it would be intro- 
 ducing a most pernicious rule to hold that if a package which from its appear- 
 ance is likely to contain merchandise is brought to a railway by a passenger, 
 the company's servants are bound to inquire whether it consists of what is 
 ordinarily understood to be personal luggage, or merchandise, at the peril of 
 being held liable for a loss if loss occurs."^ So in a Canadian case. Here it 
 appeared that the plaintiff delivered to the defendants' servant a box containing 
 only rare plants and roses intended for sale, saying that he would pay for it, and 
 the servant, after examining his ticket, said that there was nothing to pay, and 
 that it might go with the plaintiff in the train. The plaintiff testified that the 
 box was marked somewhere "Plants — Perishable," but he could not say that 
 defendants' officers saw it, and it was sworn that if they had been notified that it 
 
 London etc. R. Co., 10 C. B. (N. 8.) 154; «. c. ■» Great Northern R. Co. v. Shepherd, 7 
 
 7 Jur. (N. s.) 1164; 30 L. J. (C. P.) 289; 9 Eng. Rail. Cas. 310; s. c. 8 Exch. 30; 21 L. J. 
 
 Week. Rep. 653; 4 L. T. (N. S.) 246 (afflrnied (Exch.) 286; Stoneman v. Erie R. Co., 52 N. 
 
 on appeal, 13 C. B. (n. S.) 818; 8 Jur. IN. S.) Y. 429; Hellmau v. IloUaday, 1 Woolw. 365; 
 
 1063; 31 L. J. (C. P.) 271; 10 Week. Rep. 391) ; Minter v. Pacific R. Co., 41 Mo. 503. But see 
 
 Michigan etc. R. Co. v. Oehm, 56 111. 294; Leo Blumantle v. Fitchburg R. Co., 20 Alb. L. J. 
 
 V. Grand Trunk R. Co., 36 Upper Canada Q, 354. 
 
 B. 350. 5 cahill v. London etc. R. Co., 10 C. B. (n. 
 
 1 Camden etc. R. Co. v. Baldauf, 16 Pa. St. 8.) 154; s. c. 7 Jur. (n. s.) llfrt; 30 L. J. (C. 
 78, Rogers, J. P.) 289; 9 Week, i^cp. 6,-)3; 4 L. T. (N. s.) 246 
 
 2 Brooke V. Pickwick, 4 Bing. 218. (afllnned on appeal, 13 C. B. (N. 8.) 818; 8 
 
 3 Phillips V. Earle, 8 Pick. ^82; Rclfif v. Jur. (n. S.) 1063; 31 L. J. (0. P.) 271; 10 
 
 Rapp, 3 Watts & S. 21. Week. Rep. 391).
 
 524 passenger's baggage. 
 
 Notes. 
 
 was freight or merchandise it would not have been taken. On these facts the 
 court held that the defendants were not liable. i 
 
 § 10. Baggage of Gratmtous Passenger. — Public policy requires that com- 
 mon carriers should exercise the same extreme care for the safety of persons 
 carried gratuitously which the law demands of them when carrying passengers 
 for hire.^ With respect to the baggage of persons riding free, the case is alto- 
 gether different, and the rule of public policy does not apply. The carrier is 
 not the insurer of his passengers, but is required to use extreme care and dili- 
 gence to provide for their safety. As to the baggage of such passengers he is, with 
 the familiar exceptions, an insurer, and the theory is that his compensation as 
 insurer is represented by the fare paid for the carriage of the passenger. Where 
 the carriage is gratuitous, it would seem to be a hprdship to require of him this 
 high degree of liability for the safe carriage of baggage for the carriage of which 
 he receives no compensation. A more equitable view would render him liable 
 only as a gratuitous bailee. It was so held by Chief Justice Cooley in a recent 
 decision of the Supreme Court of Michigan.' But, so long as the passage-money 
 is paid, it is not indispensable that it should be paid in advance in order to hold 
 a carrier liable for the loss of baggage.* Nor does it matter whether it is paid 
 by the passenger himself, or by some other person for him.^ 
 
 § 11. Lien upon Baggage for Fare. — The carrier is liable "i« respect of his 
 reward,'''' as the old cases put it, and a carrier of goods has a lien upon them to 
 secure unpaid freight. So too a carrier of passengers may retain the baggage 
 of a traveller to secure the payment either of his fare or of charges for extra bag- 
 gage.^ Lawrence, J., said, in an early English case : " The master of a ship has 
 certainly no lien on the passenger himself, or the clothes which he is actually 
 wearing when he is about to leave the vessel, but I think the lien does extend to 
 any other property he may have on board. A certain sum is agreed to be given 
 for carrying the man and the luggage. I think the captain has a lien for this 
 upon the luggage. In detaining that, there is no greater inconvenience than in 
 the common case of goods and merchandise carried on freight, and there is no 
 reason why there should not be the same lien for the recovery of passage-money 
 as for the recovery of freight." ' 
 
 § 12. Carriers of Baggage only. — In a case in the New York Superior Court, 
 the distinction between baggage proper and articles improperly packed with it 
 
 » Lee V. Grand Trunk R. Co., 36 Upper s. c. 16 Jur. 124; 21 L. J. (C. P.) 34; Van Horn 
 
 Canada Q. B. 350. v. Kermit, 4 E. D. Smith, 454 ; Malone v. Bos- 
 
 - Phila. etc. R. Co. v. Derby, ante, p. 31. ton etc. R. Co., 12 Gray, 3SS; Pearson ». Du- 
 
 3 Flint etc. R. Co. v. Wier, 37 Mich. 111. ane, ante, pp. 17, IS, 20. 
 
 But see Bean v. Green, 12 Me. 422; Mobile o Wolf v. Summers, 2 Camp. 631; Rumsey 
 
 etc. R. Co. V. Hopkins, 41 Ala. 493; Malone w. North -Eastern R. Co., 14 C. B. (x. s.) 641; 
 
 V. Boston etc. R. Co., 12 Gray, 388. s. c. 32 L. J. (C. P.) 244; 11 Week. Rep. 911 ; S 
 
 < Van Horn v. Kermit, 4 E. D. Smith, 454; L. T. (N. s.) 666; 10 Jur. (N. S.) 208; Norde- 
 
 McGill V. Rowand, 3 Pa. St. 451; Flaherty meyer i>. Loescher, 1 Hilt. 499; Hutchings f. 
 
 V. Gi-eennam, 7 Daly, 481; Block v. The Western etc. R. Co., 25 Ga. 61 ; South-West- 
 
 Steamboal Trent, IS La. An. 664. em R. Co. v. Bently, 51 Ga. 311. 
 
 8 Marshall v. York etc. R. Co., 11 C. B. 655 ; ' Wolf v. Summers, stipra.
 
 CARRIERS OF BAGGAGE ONLY. 525 
 
 Contracts limiting Liability. 
 
 was extended to the case of carriers of baggage ■who do not carry the person 
 of the passenger. It held that a city express company, engaged in carrying 
 the trunks of travellers to and from the various passenger-depots in the city, 
 was not responsible for the loss of articles packed in such a trunk which were 
 not properly baggage, on the ground that its contract was to carry a trunk con- 
 taining the ordinary baggage of a traveller and nothing else.i This view is 
 believed to be erroneous. Such a carrier is in an entirely different position from 
 that of a carrier of passengers. He is a carrier of goods, strictly speaking, and 
 if he wishes to be relieved of the risk incident to the carriage of articles of great 
 value, he should take the usual precautions by making suitable regulations look- 
 ing to that end. If he receives a trunk without inquiries as to the value of its 
 contents, and it is lost, he can blame only his own improvidence if, after loss, he 
 finds that he assumed a greater responsibility than he anticipated." 
 
 § 13.- Liability of Carrier lor Loss ol Baggage, how limited by Con- 
 tract. — It seems to be well settled that the carrier may by express contract limit 
 his liability as insurer of the safe carriage of the passenger's baggage.^ It is not 
 always easy to determine whether such a contract has been made. Some of the 
 cases in which it has been held that the carrier is released from his extraordinary 
 liability by agreement with the passenger are hardly to be distinguished from 
 those in which he has sought to release himself by giving notice that he will not 
 be liable for the loss of baggage. A few examples will suffice. The passage-ticket 
 of a steamship company contained the following conditions : " The ship will not be 
 accountable for luggage, goods, or other description of property, unless bills of 
 lading have been signed therefor." " Each first and second class adult passen- 
 ger allowed to have twenty cubic feet of luggage free, but no merchandise, plate, 
 jewelry, precious stones, specie, or bullion will bo carried as luggage." The 
 court held that the terms of the ticket absolved the carrier from liability for loss 
 of the baggage occasioned by the negligence of the captain.* In another case, 
 the plaintiff paid for his passage and received the following receipt : — 
 
 "Bingham's Emigrant Line, Phila., Oct. 21, 1840. 
 
 "No. 156. Eeceived of Messrs. Rogers & McDonald $32.51, for two seats to 
 Pittsburgh, and 545 pounds extra baggage, including one trunk already forwarded. 
 
 «' Each passenger is entitled to fifty pounds baggage free. All baggage at the 
 risk of the owner. Bingham & Buothers, 
 
 "Per M. Davis." 
 
 This receipt was held to release the carrier from his ordinary liability. ^ 
 
 It should be distinctly understood, however, that the general rule is that the 
 
 > Richards v. Westcott, 2Bo8W. 589. Best & S. 594; Davidson v. Graham, 2 Ohio 
 
 s Parmelee v. Lowitz, 74 111. 116. St. 132 ; s.c.3 Am. L. Reg. 291. 
 
 8 Wilton V. Royal etc. Nav. Co., 10 0. B. < Wilton v. Royal etc. Nav.Co., lOC.B. (n. 
 
 (N. 8.) 453; 8 Jur. (N. S.) 232; 30 L. J. (C. P.) 8.) 452; s. c. 8 Jur. (N. S.) 232; 30 L. J. (C. P.) 
 
 369; 9 Week. Rep. 748; 4 L. T. (N. 8.) 706; 369; 9 Week. Rep. 748; 4 L. T. (N. S.) 706. 
 
 Moore v. Evans, 14 Barb. 524; Bingham v. See also Mobile etc. R. Co. v. Hopkins, 41 
 
 Rogers, 6 Watts & S. 495; Atwood v. Reli- Ala. 486; Penn. etc. R. Co. v. Schwarzen- 
 
 ance Transp. Co., 9 Watts, 87; T.aing v. burg, 45 Pa. St. 20S; Laing v. Colder, 8 Pa. 
 
 Colder, 8 Pa. St. 479; Peninsular etc. Nav. St. 479. 
 
 Co. V. Shand, 11 Jur. (N. s.) 771 ; s. c. 12 T.,. T. ^ Bingham v. Rogers, 6 Watts & S. 495. 
 (N. 8.) 808; Zungr. South-Eastern R. Co., 10
 
 526 passenger's baggage. 
 
 Notes. 
 
 power of the carrier to limit his liability by an express contract with the passen- 
 ger extends only to the carrier's extraordinary liability as insurer. The policy 
 of the law forbids that any bailee for hire should by contract relieve himself 
 from liability for injuries or losses consequent upon the negligence or wilful 
 default of himself or his servants.^ 
 
 § 14. Liability of Carrier for Loss ol Baggage, how limited by Notice — 
 English Railway and Canal Traffic Act. — Intimately connected with the fore- 
 going is the consideration of "carriers' notices." A full and complete discus- 
 sion of these, their origin and effects, and the vacillation which has characterized 
 the English courts in dealing with them, is impracticable within the limits of 
 this note. Furthermore, many of the cases in which the principles governing 
 them have been adjudicated, properly belong to the subject of carriers of goods.^ 
 It is sufficient for present purposes that their effect is controlled in England by 
 statutory enactment making railroad and canal companies liable for the loss of 
 any thing received for carriage, notwithstanding any notice, declaration, or condi- 
 tion made or given by such company to the contrary, or in anywise limiting such 
 liability ; but providing that nothing contained in the act shall be construed to 
 prevent the company from making special contracts ' relative to the carriage of 
 such articles.* This enactment simply restores the doctrines of the common 
 law, and is held to be applicable to carriers of passengers in respect of their 
 liability for the loss of the baggage of passengers.* 
 
 In this country the cases upon this point are in considerable confusion. In 
 New York it has been so often decided that a carrier cannot, by a general notice 
 to the public, limit his liability, that in that State the question may be considered 
 as settled.^ Nor will such a notice have the effect to relieve the carrier of liabil- 
 ity even though brought home to the passenger.' The same rule prevails in 
 Ohio .8 
 
 In Pennsylvania, however, there is a different rule. Such a notice seems to 
 be held equivalent to a contract, and to have the effect, if brought home to the 
 knowledge of the passenger, of limiting or releasing the liability of the carrier 
 as insurer, according to its terms.* 
 
 § 15. What will constitute Notice. — Admitting the right of the carrier to 
 restrict his liability for safe carriage of the passenger's baggage, it becomes a 
 material question as to what notice will be sufficient for this purpose. It seems 
 
 1 Mobile etc. R. Co. v. Hopkins, 41 Ala. 486; v. Goodmn, 19 Wend. 251; Camden etc. R. 
 Davidson v. Graham, 2 Ohio St. 132; s. c. 3 Co. v. Belknap, 21 Wend. 354; Rawson v. 
 Am. L. Reg. 291 ; Lawson on Car., §§ 28, 29, Pennsylvania R. Co., 48 N. Y. 212 ; s.c.2 Abb. 
 et seq. Pr. (N. S.) 220. 
 
 2 Consult upon this subject the recent ' Clark v. Taxton, 21 Wend. 153; Camden 
 able and exhaustive analysis of Mr. Lawson, etc. R. Co. v. Burke, 13 Wend. 611. 
 referred to supra, 8 Jones v. Voorhees, 10 Ohio, 145 ; David- 
 
 3 Peninsular etc. Steam Nav. Co. v. Shand, son v. Graham, 2 Ohio St. 132; s. c. 3 Am. L. 
 11 Jur. (N. S.) 771; s. c. 12 L. T- (N. s.) 808. Reg. 291. 
 
 < The Railway and Canal Traffic Act, 17 ' Atwood v. Reliance Transp. Co., 9 Watts, 
 
 & 18 Vict., c. 31, § 7. 87; Bingham v. Rogers, 6 Watts & S. 495; 
 
 5 Cohen v. South-Eastern R. Co., 2 Exch. Laing v. Colder, 8 Pa. St. 484; WhiteseU v. 
 Div. 253 ; $.c.\ Exch. Div. 217. Crane, 8 Watts & S. 369. 
 
 6 HoUister v. Nowlen, ante, p. 483; Cole
 
 LIMITATION OF LIABILITY BY NOTICE. 527 
 
 What is a Good Notice. 
 
 clear that such a notice merely placarded in the office of the carrier can not have 
 the desired effect, in the absence of evidence that the passenger read it or was 
 aware of its contents. ^ 
 
 The leading case upon this subject is that of Henderson v. Stevenson.'^ The 
 condition or notice was there printed upon the back of the ticket. The notice 
 itself was totally absurd, as it was intended to operate as a discharge of the 
 carrier from every species of liability to the passenger. However, the case is 
 valuable in the aspect we are considering, as the discussion turned entii-ely upon 
 the consideration of sufficiency of notice. 
 
 In a recent case decided by the Superior Court of New York, it appeared that 
 the agent of a transfer company approached the plaintiff upon the cars, asking 
 for baggage. The plaintiff gave him his check, and received in exchange a 
 printed receipt marked "Domestic Bill of Lading." This receipt contained 
 conditions of carriage releasing the carrier from his liability at law for dam- 
 ages beyond the sum of $100, unless specially compensated. When the receipt 
 was delivered, the light in the cars was so indistinct that it was impossible to 
 read it, and the plaintiff, upon receiving it, put it into his pocket without 
 attempting to read it. The court held that under such circumstances it did 
 not constitute a contract between the plaintiff and the carrier, and that the 
 liability of the latter was unaffected thereby.* 
 
 In an earlier case in the same court, it was said of a condition on a passage- 
 ticket releasing the carrier from liability for the carriage of baggage of value 
 greater than $100: "We cannot on principle regard such a memorandum, or 
 any memorandum on a passenger's ticket, as constituting a contract between 
 the carrier and the passenger. These tickets are usually received and paid 
 for in the bustle of a crowd, and it is unreasonable to suppose that the pas- 
 senger reads and assents to the terms of a memorandum printed thereon ; 
 besides, they are surx-endered to the conductor of the cars or collector on the 
 boat. If contracts, the plaintiff would be entitled to retain them as evidence 
 of his right, as in the case of a bill of lading, until the safe delivery of his 
 baggage. Such tickets are rather tokens or evidences of the right of the pas- 
 senger to a seat in the cars or accommodation on the boat, from the fact of 
 having paid the fare, and they have fulfilled all their purpose when that right is 
 admitted by the call for and surrender of the tickets."* And in Virginia a veiy 
 well-considered case is authority for the view that such a condition printed upon 
 the back of a railway ticket will not be binding upon the passenger unless it 
 appears that he read it before the cars started.^ 
 
 In a Massachusetts case, without deciding the vexed question as to the effect 
 of such a condition, the court held that the mere printing of the condition upon 
 the back of a railway ticket, and detached from what ordinarily contains all that 
 is material to the passenger, will not raise a legal presumption that at the time 
 
 1 Brooke v. Pickwick, 4 Blng. 218; Bean v. vania R. Co., 48 N. Y. 212; «. c. 2 Abb. Pr. (n. 
 
 Green, 12 Me. 422; Henderson v. Stevenson, S.) 220; Steers v. Liverpool etc. Steam Co., 57 
 
 L. R. 2 So. App. 470, 473, per the Lord Chan- N. Y. 1. 
 cellor. ^ Supra. ^ Wilson v. Chesapeake etc. R. Co., 21 
 
 ' Madan v. Sherrard, 10 Jones & Sp. 353. Gratt. 654. See also llawson v. Pennsylvania 
 
 See also Blossom v. Dodd, 43 N. Y. 2&4. R. Co., 48 N. Y. 212; s. c. 2 Abb. Pr. (N. 8.) 
 
 * Nevins v. Bay State Steamboat Co., 4 220; Henderson v. Stevenson, L. R. 2. Sc. 
 
 Bosw. 225, 234. See also Rawson v. Pennsyl- App. 470.
 
 528 passenger's baggage. 
 
 Notes. 
 
 of receiving the ticket, and before the train left the station, the traveller had a 
 knowledge of its terms. The opinion further distinguishes this from the case 
 of a receipt given bj- a carrier of goods. Dewey, J., said: " I am aware that, 
 in reference to ordinary merchandise transported by common carriers, it has 
 been held in some cases in the English courts that a ticket given to the owner of 
 merchandise, containing on the face of it a condition or limitation of the liability 
 of the carrier, was held to furnish evidence of the special contract of transpor- 
 tation, sufficient to affect the owner of the merchandise and to limit the liability 
 of the carrier.! These cases obviously differ from the present, and fail to satisfy 
 us of the sufficiency of the notice in the case before us." ^ 
 
 There seems, on principle, to be less objection to the doctrine as stated by Mr. 
 Justice Shipmax of the United States Circuit Court for the Southern District of 
 New York. It appearing that, at the time the check was given for the trunk, 
 there was delivered with it a paper containing a printed notice that the carrier 
 would not "become liable for merchandise or jeweliy contained in baggage 
 received upon baggage-checks, nor for loss by fire, nor for an amount exceeding 
 one hundred dollars upon any article, unless specially agreed for in writing on 
 this check-receipt, and the extra risk paid therefor," together with a statement 
 that the owner thereby agreed that the carrier should be liable only as above, 
 the court held that the passenger was chargeable with notice of the contents of 
 the paper, and that the carrier was liable only in accordance with its terms. ^ 
 
 It is provided by statute in New Jersey that the responsibility of railroad 
 companies as carriers of baggage shall be limited to .$100 for every hundred 
 pounds of baggage, in cases where notice to that effect is given by being placed 
 in a " conspicuous place in the receiving-office for baggage " of the company 
 and " inserted in the tickets given to the passengers." * It was held by the Penn- 
 sylvania court, that, in order to take advantage of this act, the carrier must 
 clearly show that the notice was inserted in the passengers' tickets as well as 
 placarded in the office.* 
 
 § 16. An Exception under the Railway and Canal Trafllc Act — Excursion 
 Trains. — There is a class of English cases in which the court hold that, not. 
 withstanding the act of Parliament previously mentioned,^ it is competent for 
 the carrier to limit his liability by notice. Where a railway company issued 
 ■excursion tickets at reduced prices, " subject to the conditions contained in the 
 company's time and excursion bills," and the bills contained this condition, 
 "Luggage under 60 pounds free, at passenger's own risk,'' and the purchaser of 
 one of these tickets had the means of knowing, but did not in fact know, of the 
 condition, it was held that he could not recover for the loss of his baggage 
 during the transit, though it was properly addressed and he was not allowed 
 to retain it under his personal control.'' The reason for this decision, though 
 
 » Citing Austin v. Manchester etc. R. Co., * Rev. N. J. 1877, p. 913, § 27; Acts N. J. 
 
 10 C. B. 454; Shaw v. York etc. R. Co., 6Eng. 1853, p. 396. 
 
 Rail. Cas. 87 ; s. c. 13 Q B. 347. s Brown v. Camden etc. B. Co., 83 Pa. St. 
 
 s Brown v. Eastern R. Co., 11 Cush. 101. 316. 
 
 3 Hopkins v. Westcott, 6 Blatchf. 64. See « Ante, § 14, The Railway and Canal Traffic 
 
 also New York etc. R. Co. v. Fralotf, 9 Cent. Act, 17 & 18 Vict., c. 31, § 7. 
 
 li. J. 432; s. c. 20 Alb. L. J. 409; 8 Reporter, ■ Stewart v. London etc. R. Co., 3 Hurl. & 
 
 801; ante, p. 50/2. Colt. 135; s. c. 10 Jur. (N. S.) 805; 33 L. J.
 
 EXCURSION TRAINS. 529 
 
 Regulations — Notice to Passenger. 
 
 not very clearly expressed in the opinion of the court, is evidently that a carrier 
 is under no obligation to make excursion rates for the passenger's carriage, and 
 such rates therefore form essentially a special contract. The time and excursion 
 bills are a proposal on the part of the carrier for a special contract of carriage, 
 and if the passenger has the opportunity of learning from them the terras of the 
 agreement, it is his duty to do so, and the law presumes that he has done so 
 before he assents to the special contract by taking his place in the cars. Per- 
 mitting a passenger to carry baggage on an excursion ti'ain is ex gratia at most. 
 If the passenger insists upon going upon an excursion train and carrying his 
 baggage, the company may, in the absence of any agreement to a different effect, 
 demand a compensation for the carriage of such baggage, and hold it until the 
 charges are paid.^ 
 
 § 17. Regulations of the Carrier in respect of Baggage — Notice to Passen 
 ger. — Although the correct rule seems to be that a carrier cannot limit his lia- 
 bility by a mere notice that he v^ill not be responsible beyond a certain extent, 
 yet there is no reason, either on principle or the authority of adjudicated cases, 
 why he may not make, for his own protection and for the greater safety of the 
 baggage, such reasonable regulations for the checking, custody, and carriage of 
 the baggage as may be suggested by reason and experience.^ But the carrier 
 cannot take advantage of a failure of the passenger to comply with such a regu- 
 lation, unless the regulation is in itself of a reasonable and proper nature. A 
 regulation forbidding the passenger, who pays an extra price for a state-room on 
 n steamboat, from taking his baggage with him into it, except at his own risk, 
 is not a reasonable regulation so far as it relates to light baggage or hand- 
 satchels containing articles required for use in travel, and a failure of the pas- 
 
 (Exch.) 199; 12 Week. Rep. 689; 10 L. T. (N. things whatsoever carried upon the railway 
 
 S.) 302. with any passenger, other than such pas- 
 
 1 Rumsey v. North-Eastern R. Co., 14 C. senger's articles of clothing not exceeding 
 B. (N. s.) 641; s. c. 32 L. J. (C. P.) 244; 11 tlie weight and dimensions aforesaid; pro- 
 Week. Rep. 911; 8 L. T. (N. S.) 666; 10 Jur. vided, that nothing contained in the act shall 
 (N. 8.) 208. Compare Najac v. Boston etc. extend to make the company liable further 
 R. Co., 7 Allen, 329. than where, according to law, stage-coach 
 
 2 Macklin «. New Jersey steamboat Co., 7 proprietors and common carriers would be 
 Abb. Pr. (N. S.) 229; s. c. 9 Am. L. Reg. (N. liable. Sect. 144 enables the company to 
 8.) 239; Baldwin v. Collins, 9 Rob. (La.) 468; make by-laws " for the good government of 
 Freeman v. Newton, 3 E. D. Smith, 246; Wil- the attairs of the company, and for the man- 
 liams V. Keokuk etc. Packet Co., 5 Cent. L. agement of the said undertaking." The 
 J. 400; Gleason v. Goodrich Transp. Co., 32 company made a by-law that every first- 
 Wis. 86. Of course, a carrier corporation class passenger should be allowed to cai'ry 
 cannot make regulations which are in con- one hundred and twelve pounds of luggage 
 travention of the provisions of its charter. free of charge, but that the company would 
 The one hundred and sixty-ninth section of not be responsible for the care of the same 
 the 5 & 6 VVm. IV., c. 107, which incorporated unless booked and the carriage thereof paid 
 the Great Western Railway, enacts that, for. It was held that the company had no 
 without extra charge, it shall be lawful for i)ower to make this by-law, since it was in 
 every passenger travelling upon the railway contravention of the one hundred and sixty- 
 to take with him articles of clothing not ninth section. Williams v. Great Western 
 exceeding forty pounds in weight and four l^. Co., 10 Exch. 15. See also Munster v. 
 cubic feet in dimensions; and that the com- bouth-Eastern K. Co., 4 C. B. (N. s.) 676; «. c. 
 paiiy shall iu uo case be respousible for any 4 Jur. (N. 8.) 738; 27 L. J. (C. P.) 308. 
 
 84
 
 530 passenger's baggage. 
 
 Notes. 
 
 senger to cdiiiply with it will not exonerate the carrier from liability for the 
 loss of such baggage. 1 
 
 Not only must the regulation be reasonable, but it must appear that notice of 
 it was brought home to the passenger.^ The carrier, too, must extend to the 
 passenger every facility for complying with the regulation.* A notice posted in 
 defendant's steamboat, that the owners will not be liable for baggage unless it 
 is checked, will not protect them against the claim of a passenger who delivered 
 his baggage to their agent on board the boat and demanded a check, but failed 
 to obtain it because the person whose duty it was to give checks was not present.* 
 
 § 18. Liability ol Carrier limited by Statute. — It has sometimes been seen 
 fit to limit the common-law liability of carriers by legislative enactment. When 
 this has been done in general terms, it is held that the provision extends 
 to the case of a passenger's baggage equally with that of goods which are 
 delivered for transportation. An act of Congress providing that the owner of a 
 vessel shall not be liable for loss or damage " which may happen to any goods 
 or merchandise whatsoever which shall be shipped, taken in, or put on board 
 any such ship or vessel, by reason or by means of any fire happening to or on 
 board the said ship or vessel, unless such fire is caused by the design or neglect 
 of such ovpner or owners," ^ was held to include in the terms "any goods or 
 merchandise " the ordinary baggage of passengers.' 
 
 § 19. Duties of the Passenger in respect of Baggage during Transit. — 
 Having delivered his baggage to the carrier, the passenger is charged with no 
 further duty or care concerning it until arrival at his destination. The car- 
 rier undertakes to carry the baggage, and this undertaking involves the duty 
 of making all necessary changes of vehicles, transshipments, etc., that may be 
 necessary to accomplish that object. It is not the duty of the passenger to 
 inquire for his baggage at a change of vehicles, nor to see that it is properly 
 shipped, and his failure to do so will not relieve the carrier from a liability for 
 its loss.' 
 
 § 20. Liability ol Sleeping-Car Companies for Loss of Baggage and Valu- 
 ables. — It seems to be settled by the few adjudged cases upon this subject that 
 sleeping-car companies are to be regarded neither as innkeepers nor common 
 carriers, nor subject to the onerous liabilities of either in respect of the prop- 
 
 1 Macklin v. New Jersey Steamboat Co., ^ 9 xj. S. Stats, at Large, 635, § 1; U. S. 
 
 7 Abb. Pr. (N. 8.) 229; s. c. 9 Am. L. Reg. (N. Rev. Stats., § 4282. For a full examination 
 
 S.) 237. of the United States statutes affecting car- 
 
 = Baldwin v. Collins, 9 Rob. (La.) 468; riers of passengers, see Chap. XV., § 17, owfe, 
 
 Macklin v. New Jersey Steamboat Co., 7 p. 475. 
 
 Abb. Pr. (N. 8.) 229; s. c. 9 Am. L. Reg. (N. ^ Chamberlain v. Western Transp. Co., 44 
 
 S.)237; New York etc. R. Co. ■;;. Fraloff, 20 N. T. 305; Chisholm «;. Northern Transp. Co., 
 
 Alb. L. J. 409; s. c. 9 Cent. L. J. 432; 8 Re- 61 Barb. 363. See also McDougall v. Allan, 
 
 porter, 801, ante, p. 502. 6 Lower Canada Jur. 233. Contra, Dunlap 
 
 3 Great Western R. Co. v. Goodman, 12 C. v. International Steamboat Co., 98 Mass. 371. 
 
 B. 313; 16 Jur. 862; 21 L. J. (C. P.) 197. ' Campbell v. Caledonian R. Co., 14 Scot. 
 
 * Freeman v. Newton, 8 E. D. Smith, Sess. Cas. (n. s.) 806; Check v. Little Miami 
 
 246. R. Co., 2 Disney, 237.
 
 SLEEPING-CAR COMPANIES. 531 
 
 Liability for Loss of Baggage and Valuables. 
 
 erty of those enjoying their accommodations. It is evident that these flying 
 nondescripts do not come within the definition of an inn: "It must be a house 
 kept open publicly for the lodging and entertainment of travellers in general, for 
 a reasonable compensation. If a person lets lodgings only, and upon a previous 
 contract with every person who comes, and does not afford entertainment for the 
 public at large, indiscriminately, it is not a common inn." ^ The peculiar lia- 
 bility of the innkeeper is one of great rigor, and should not be extended beyond 
 its proper limits; " and it seems that it would be such an extension to apply it to 
 the class of cases under discussion. Thus, the keeper of a coffee-house, or pri- 
 vate boarding or lodging house, is not an innkeeper in the strict sense of the 
 term.' The proprietors of the sleeping-car cannot be regarded as liable as 
 carriers, because the contract of carriage has been made with the railroad com- 
 pany;* nor subject to the same liabilities as a carrier providing state-rooms for 
 his passengers, because, from the nature of the accommodations offered, the 
 same security against loss is impossible.* 
 
 What, then, shall be the measure of responsibility of these companies? All the 
 cases seem to agree that their duty is to exercise at least ordinary care for the se- 
 curity of passengers' valuables. Of course, this care must be in proportion to the 
 danger reasonably to be apprehended. Such danger is greater at night, while the 
 passenger is asleep, than in the daytime, when he is awake and can care for him- 
 self.* This point is well stated in a case previously noticed: " The scope of the 
 liability of companies of this kind, so far as I know, has never been judicially 
 determined. It is undoubtedly the law that where a passenger does not deliver 
 his property to a carrier, but retains the exclusive possession and control of it 
 himself, the carrier is not liable in case of a loss, — as, for instance, when a pas- 
 senger's pocket is picked, or an overcoat or satchel is taken from a seat occupied 
 by him. Upon this theory, it is insisted by defendair that it cannot be held liable 
 for negligence, inasmuch as the clothing and effeei-- of its guests are never for- 
 mally delivered to it. I cannot for a moment accede to this proposition. It is 
 scarcely necessary to say that a person asleep cannot retain manual possession 
 or control of any thing. The invitation to make use of the bed carries with it an 
 invitation to sleep, and an implied agreement to take reasonable care of the 
 guest's effects while he is in such a state that care upon his own part is impos- 
 sible. There is all the delivery which the circumstances of the case admit. I 
 think it should keep a watch during the night, see to it that no unauthorized per- 
 sons intrude themselves into the car, and take reasonable care to prevent thefts 
 by the occupants." ' 
 
 Judged by the foregoing standard, the proprietors of a sleeping-car seem to 
 
 » 2 Kent's Comm. 595; Story on Bail., § 475; " Dausey v. Richardson, 3 El. & Bl. 144; 
 
 Bac. Abr., tit. " Inns and Innkeepers," (C.) Holder v. S<>i.ll)y, 8 C. B. (N. 8.) 254; s. c. 29 
 
 See the points of difference well stated by L. J. (C. P.) 246; 6 Jur. (n. s.) 1031; 8 Week. 
 
 Brown, J., in a case before the United States Rep. 438; Kisten v. Ilildebrund, 9 B. Mon. 72. 
 
 Circuit Court for the Western District of ■* Pullman Palace-Car Co. v. Smith, 73 111. 
 
 Tennessee. Blum v. Southern Pullman Pal- 360. 
 
 aceCar Co., 3 Cent. L. J. 591. •' Crozier v. Boston etc. R. Co., 43 How. i'v. 
 
 2 Pullman Palace-Car Co. v. Smith, 73 111. 466. 
 
 360, 365; Blum v. Southern Pullman Palace- <> Diehl v. Woodruff, 10 Cent. L. J. 66. 
 
 Car Co., supra; Welch v. Pullman Palace- ' Brown, J., in Blum v. Southern Pullman 
 
 Car Co., 16 Abb. Pr. (N. 8.) 352. Palace Car Co., 3 Cent. L. J. 591, 592.
 
 532 passenger's baggage. 
 
 Notes. 
 
 have been properly held liable for theft of a passenger's valuables where both 
 the conductor and poi'ter of the sleeping-car were asleep for several hours at the 
 rear end of the car, leaving the front door unlocked, and a brakeman of the train 
 only sitting at the other end.' Also where the conductor of the car quitted the 
 train at a distance of eighty-four miles from its destination and permitted it to 
 go on with the porter only in attendance, who was engaged chiefly in blacking 
 boots in a room at the end of the car.^ 
 
 In cases of loss for which these companies are responsible, the measure of lia- 
 bility is the same as that of the common carrier of passengers under similar 
 cii'cumstances. It includes only such property as the passenger may reasonably 
 be supposed to carry about his person. It extends to his clothing and personal 
 ornaments, the small articles of baggage usually carried in the hand, and a rea- 
 sonable sum of money for travelling expenses.* 
 
 § 21. Duty of the Carrier to deliver Baggage safely. — The liability of the 
 carrier is coextensive with his custody of the baggage, and continues until it is 
 safely delivered into the hands of the passenger, or until the latter, by the impli- 
 cation derived from his conduct, relieves the former from his extraordinary 
 responsibility.* To constitute a delivery to the passenger, it is not necessary 
 that the latter should actually receive his baggage, but it is sufficient if he 
 assumes control and direction of it. Thus, a passenger upon the Midland Rail- 
 way from Gloucester to Bristol, on arriving at Bristol, told the porter that he 
 wished to proceed by the Bristol and Exeter Railway to Torquay. The porter 
 thereupon placed his portmanteau on a truck with other baggage, entered the 
 Bristol and Exeter station with the truck, passed down an incline from the 
 arrival platform, crossed the lines of the railway, and ascended on an incline 
 to the departure platform of the Bristol and Exeter Railway. The,re was no 
 evidence that the portmanteau was seen afterwards ; however, it never reached 
 Torquay. In an action against the Midland Railway, the court held that there 
 was no evidence of a breach of their contract to deliver either to the passenger 
 or at the departure platform of the Bristol and Exeter Railway.^ 
 
 Where it is the custom for the baggage to be delivered by the servants of a 
 vessel to a railway company, and checks received therefor and handed to the 
 passengers on the train, the owners of a vessel were held liable for the loss of a 
 passenger's trunk who received the right number of checks, but one of whose 
 checks called for a trunk not his own, on the ground that there was no delivery 
 to him of his baggage.^ 
 
 1 Blum V. Southern Pullman Palace-Car R. Co., 19 Wis. 40; Toledo etc. R. Co. *. Ham- 
 Co., supra. mond, 33 Ind. 379 ; Patscheider v. Great West- 
 
 2 Diehl V. Woodruff, 10 Cent. L. J. 66. ern R. Co., 3 Exch. Div. 153 ; Kent v. Midland 
 
 3 Blum V. Southern Pullman Palace-Car R. Co.,L. R. 10 Q. B. 1 ; s. c. 44 L. J. (Q. B.) 18; 
 Co., 3 Cent. L. J. 591; Diehl v. Woodruff, 10 31 L. T. (N. s.) 430; 23 Week. Rep. 25; Cole 
 Cent. L.J. 66; Welch »>. Pullman Palace-Car v. Goodwin, 19 Wend. 251; Ouimit i?. Hen- 
 Co., IC Abb. Pr. (N. s.) 352; Palmeter v. Wag- shaw, 35 Vt. 604 ; Mattison v. New York etc. 
 ner, 10 Alb. L. J. 149. R. Co. 19 Alb. L. J. 359 ; s. c. 8 Reporter, 440. 
 
 * Butcher v. London etc. R. Co., 16 C. * Midland R. Co. v. Bromley, 17 C. B. 372; 
 
 B. 13; a. c. 1 Jur. (n. s.) 427; 24 L. J. (C. s. c. 2 Jur. (N. s.) 140; 25 L. J. (C. P.) 94. See 
 
 P.) 137; Richards v. London etc. R. Co., also Penton ?;. Grand Trunk R. Co., 23 Up - 
 
 7 C. B. 839; «. c. 6 Eng. Rail. Cas. 49; 13 Jur. per Canada Q. B. 367. 
 
 986 ; 18 L. J. (C. P.) 251 ; Minor v. Chicago etc. ^ Fisher v. Geddes, 15 La. An. 14.
 
 DUTY OF CARRIER TO DELIVER. 533 
 
 What is a Good Delivery. 
 
 Tlie question as to wliat constitutes an an-ival at the destination of the passen- 
 ger, and a conclusion of his journey, is one of fact, dependent for its solution 
 upon the intention of the parties in making the contract for carriage. Whei'e it 
 is not otherwise specially agreed, it will be presumed that the parties had in 
 contemplation a conclusion of the journey in accordance with the established 
 custom and usage of the carrier. Thus, the plaintiff was a steerage-passenger 
 from Hamburgh to New York. On arrival at the latter port, the vessel terminated 
 her voyage at Hoboken, opposite the city of New York, that being the place 
 where, according to the established usage and custom of the defendants, all 
 their passengers and their baggage were landed. At that place the plaintiff's 
 baggage was placed upon the pier, was opened by the plaintiff for the examina- 
 tion of the customs-officer, and was then taken charge of by the subordinates 
 or employees of the commissioners of emigration, by whom it was transported 
 to the emigrant-depot in the city of New York, as required by the statute regu- 
 lating the landing of emigrant passengers in the port of New York. The coui't 
 held that in the absence of proof of a contract on the part of the defendants to 
 transport the plaintiff and his baggage to the city of New York, the defendants 
 were discharged from any further obligation as to the baggage, on its delivery to 
 the commissioners of emigration at Hoboken.' A voyage from one seaport to 
 another is not concluded at the quarantine of the port of destination, but the 
 carrier may be excused from the complete fulfilment of his contract by the quar- 
 antine regulations. He must, however, make a delivery of the baggage, either 
 at the quarantine or at the port of destination, to relieve himself from his 
 liability as carrier. In a case where it appeared that the plaintiff, being ill, left 
 the vessel at quarantine, his baggage remaining on board the vessel, which 
 reached its destination, the court held that in the absence of any offer on the 
 defendants' part to deliver the baggage at the quarantine, they were bound to 
 deliver it at the end of the journey when called for.-' 
 
 Of course, a delivery of the baggage to the passenger's authorized agent is 
 equivalent to a delivery to the passenger himself. The question of agency, in 
 such a case, is a question of fact. This will be illustrated by the facts of the 
 following case : By virtue of an agreement between a railroad and a steamboat 
 company, the baggage-master of the latter always entered the cars before their 
 arrival at the depot, and took the checks of through-passengers by the boat, 
 giving them in exchange checks of the steamboat company. It was a contro- 
 verted question whether he was the plaintiff's agent to receive the baggage, or 
 the railroad company's agent by agreement with the steamboat company to 
 take charge of the baggage and deliver it at the boat ; thei'efore a charge which 
 in effect assumed that he was the plaintiff's agent was held to be an invasion 
 of the province of the jury.' 
 
 The contract of the carrier is to deliver at the end of the journey, and if the 
 baggage of a passenger on a railroad is carried past his destination to another 
 fetation of the road, and there stored in the company's depot baggage-room, the 
 liability of the company as a common carrier is not thereby ended. The com- 
 pany will be liable for the theft of the goods while so stored.* 
 
 1 Klein v. Hamburg American Packet ' Mobile etc. R. Co. v. Hopkins, 41 Ala- 
 Co., .3 Daly, 390. 486. 
 
 2 Gilhooly v. New York etc. Steam Nav. < Toledo etc. R. Co. v. Hammond, 33 Ind. 
 Co. 1 Daly, 197. 379.
 
 534 passenger's baggage. 
 
 Notes. 
 
 The effect of a delivery of the baggage to the passenger is to end the carrier's 
 extraordinary liability ; and therefore a redelivery of the baggage to his agent, 
 not for carriage, but for safe-keeping, for the convenience of the passenger, will 
 render the carrier responsible only as a gratuitous bailee.^ The burden of show- 
 ing that the baggage was delivered to the passenger, it appearing that it was 
 once in the custody of the carrier for carriage, is upon the carrier.' 
 
 § 22. Duty of Carrier to afford Facilities for Delivery and Storage of 
 Baggage at Destination. — The duty of the carrier to deliver his baggage to 
 the passenger necessarily involves the duty to extend to the passenger facilities 
 for receiving it. It should be placed where he can get at it. In the case of a 
 railway company, the platform of the station is the usual and proper place to 
 keep it until the owner, in the exercise of due diligence, can receive it.^ There 
 should be a baggage-master in attendance to take care of it and receive the 
 checks and deliver it.* The common carrier is under obligations, too, to care 
 for the baggage for a reasonable time after arrival, to enable the passenger 
 to take possession of it.^ 
 
 § 23. Duty of the Passenger to remove his Baggage on arrival at Destina- 
 tion. — On the other hand, there is a reciprocal duty resting upon the passenger 
 to remove his baggage within a reasonable time after reaching his destination, 
 and thus relieve the carrier from further care and responsibility concerning 
 it. After an opportunity to do this has been afforded him, a failure on his part 
 to remove it within a reasonable time will have the effect of relieving the carrier 
 from his extraordinary liability. He becomes liable then as a warehouseman or 
 bailee for hire.^ But the new relation of warehouseman does not arise until it 
 appears that the baggage was stored in a safe and secure warehouse. If it is 
 placed in an insecure room, and stolen, the carrier will be liable as a common 
 carrier and uot as a warehouseman.'' Thus, the baggage of the plaintiff was not 
 claimed upon arrival at its destination, and, after remaining several hours on the 
 
 ' Minor v. Chicago etc. R. Co., 19 Wis. 40. Bartholomew v. St. Louis etc. R. Co., 53 111. 
 
 * Kent V. Midland R. Co., L. R. 10 Q. B. 1; 227; Burnell v. New York etc. R. Co., 45 N. 
 s. c. 44 L. J. (Q. B.) 18; 31 L. T. (N. s.) 430; Y. 184; Chicago etc. R. Co. v. Fairclough, 52 
 23 Week. Rep. 25. 111. 106; Mattison v. New York etc. R. Co., 57 
 
 3 Patscheider v. Great Western R. Co., 3 N. Y. 552; Mote v. Chicago etc. R. Co., 27 
 
 Exch. Div. 153; Cary v. Cleveland etc. R. Iowa, 22; Ross V.Missouri etc. R. Co., 4 Mo. 
 
 Co., 29 Barb. 35. App. 583; Penton v. Grand Trunk R. Co., 2t4 
 
 * Dininny i;. New York etc. R. Co., 49 N. Upper Canada Q. B. 367; Patscheider i'. 
 Y. 546. Great Western R. Co., 3 Exch. Div. 153. A 
 
 5 Nevins v. Bay State Steamboat Co., 4 loose dictum of the New York Supreme 
 
 Bosw. 225; Gilhooly v. New York etc. Steam Court would seem to warrant the view that 
 
 Nav. Co., 1 Daly, 197; Patscheider v. Great a carrier is liable for unclaimed baggage 
 
 Western R. Co., 3 Exch. Div. 153; Cary v. merely as gratuitous bailee. Jones t>. Nor- 
 
 Cleveland etc. R. Co., 29 Barb. 35; Curtis v. wich etc. Transp. Co., 50 Barb. 193. Such a 
 
 Delaware etc. R. Co., 74 N. Y. 116. doctrine, however, is entirely unsupported 
 
 « Dininny v. New York etc. R. Co., 49 N. by authority. 
 
 Y. 546; Chicago etc. R. Co. v. Boyce, 73 111. ■ Bartholomew v. St. Louis etc. R. Co., 53 
 
 510; Roth V. Buffalo etc. R. Co., 34 N. Y.548; 111. 227; Chicago etc. R. Co. v. Fairclough, 
 
 Van Horn v. Kermit, 4 E. D. Smith, 454; 52 111.106; Mattison r. New York etc. R. Co., 
 
 Louisville etc. R. Co. v. Mahan, 8 Bush, 184; 57 N. Y. 552; Mote v. Chicago etc. R. Co., 27 
 
 Holdridge v. Utica etc. R. Co., 56 Barb. 191; Iowa, 22.
 
 DUTY OF CARRIER TO DELIVER. 535 
 
 Duty of Passenger to remove. 
 
 platform, was removed by the station-agent into a room, which was the only 
 place for storing baggage connected with the station, but which was not secure 
 for the lieeping of such property, the door being so imperfectly fastened as to 
 ■constitute no bar to any one desiring to enter, and the building being without a 
 watchman. The room having been entered during the night, and the trunk 
 broken open and rifled, the company was held liable for the loss.^ 
 
 A bailee for hire, which is the relation which the carrier bears to the traveller 
 under such circumstances, is bound to exercise, for the safe-keeping of the 
 goods in his charge, such due diligence and care as a prudent man, in contem- 
 plation of all the circumstances, would exercise towards his own property. He 
 is liable for all losses in consequence of his negligence or that of his servants. 
 A failure on the part of the carrier to deliver the baggage upon demand, is evi- 
 dence of negligence, and makes a primci facie case of liability against him. The 
 burden of accounting for the default lies with the carrier. Thus, the plaintiff 
 purchased a ticket of a railroad company for New York City over their road and 
 a connecting line, and had his baggage checked through to that city. Upon his 
 arrival there, he gave his check to an expressman, with instructions to get his 
 baggage from the depot. The expressman never called for the trunk, and when 
 the plaintiff, two days afterwards, demanded his trunk, it could not be found. 
 The defendants, in pursuance of an agreement with the connecting line, had 
 transferred the baggage to the latter at Albany, and it had been conveyed by 
 them to New York and deposited in their depot. The court held that in the 
 absence of any proof by the defendants, accounting for their failure to deliver 
 the baggage, the plaintiff was entitled to recover for its loss.^ 
 
 In these cases, what is a reasonable time for the removal of baggage must 
 necessarily depend upon the circumstances of each individual case, and is fre- 
 quently, to a great extent, a question of fact for the jury; but where the facts 
 are undisputed, it is said to be a question of law, to be determined by the court.* 
 Where a traveller, upon reaching the end of one of the stages of her journey, 
 not wishing to be troubled with her trunk, intentionally abandoned it to the 
 care of the carrier, without inquiry about it, presentation of her check, or expla- 
 nation, special arrangement, or notice, for about seventeen hours, while she went 
 about three miles to visit a friend, and during that period the trunk with its 
 contents was accidentally, and without negligence on the part of the carrier, 
 destroyed by fire in a baggage-room on the dock, into which it had been removed 
 by the carrier's employees, the court held that the carrier was not liable for the 
 loss.* In another instance, a vessel arrived in port on Monday; on Tuesday the 
 master and mate requested the passenger to remove his baggage, which he 
 failed to do. Upon the passenger demanding his baggage the following Wednes- 
 <lay, it was found to be missing. The court held that the owners were relieved 
 from their strict liability as carriers.* In a case previously noticed, the passenger 
 was obliged to quit the vessel at quarantine, and his baggage went on to New 
 York City, — his destination. A delay of several days to demand the baggage 
 
 1 Mote V. Chicago etc. R. Co., 27 Iowa, 22. » Chicago etc. R. Co. v. Boyce, 73 111. 510; 
 
 2 Buvnell v. New York etc. K. Co., 45 N. X, Roth v. Buffalo etc. R. Co., U N. V. 548. 
 
 184. See also Chicago etc. H. Co. v. Fair- ■• Jones v. Norwich etc. Transp. Co., 50 
 
 clough, r>2 111. 106; Bartholomew v.'St. Louis Barb. 19.'}. 
 
 etc,. 11. (Jo., 53 111. 227. * Van Horn v. Kertnit, 4 E. D. Smith, 453.
 
 536 passenger's baggage. 
 
 Notes. 
 
 was considered insufficient to release the owners of the vessel from liability 
 as carriers.* 
 
 Other courts are less liberal towards the passenger. A Kentucky case is 
 authority for the rule that a passenger arriving at his destination at half-past 
 eight o'clock, p. m., has "no right to prolong the strict and rigid liability of the 
 company as a common carrier by leaving his baggage in the possession of its 
 agent during the night." ^ In a Canadian case, it appeared that the plaintiff 
 arrived at his destination at three o'clock in the afternoon, and having had his 
 trunks put into the baggage-room, left the station in an omnibus. In the evening 
 about eight o'clock he sent his checks for the trunks, but one of them had dis- 
 appeared, and the evidence went to show that it had been stolen. It was held 
 that the defendants were not responsible for this loss ; that their duty as com- 
 mon carriers ended when the trunk was placed on the platform and the plaintiff 
 had had a reasonable time to remove it, as he clearly had here.* 
 
 A statute forbidding the doing of any secular work or travelling on the Lord's 
 Day wiU not excuse a passenger who arrives at his destination on Sunday morn- 
 ing from demanding and receiving his baggage.* 
 
 Circumstances will sometimes excuse a failure of the passenger to claim and 
 remove his baggage. Where the passenger was a lame boy, and unable to take 
 charge of his baggage personally, and made an arrangement with the agent of 
 the carrier by which it was to remain in his hands until sent for, and while so 
 in his hands it was lost, the court held the carrier liable for the loss.* 
 
 §24. Delivery of Baerera^e upon Forged Order, — As before stated, the 
 responsibility of a carrier of passengers for the safety of baggage is absolute, 
 except as against the act of God and the public enemy. With these exceptions, 
 nothing short of a redelivery to the passenger or his authorized agent, or default 
 in demanding it, will relieve him from this responsibility. Therefore a delivery 
 of a passenger's baggage to a person not authorized to receive it, upon a forged 
 order, whereby it is lost to the owner, will not relieve the carrier of liability, 
 though made in good faith.* 
 
 § 25. Measure ol Damages in Action for Loss of Baggage. — In an action by 
 a passenger against a carrier for the loss of his baggage, the proper measure of 
 the plaintiff's recovery is the fair market value of his property.' This must be 
 ascertained by the jury, and based upon some evidence. Thus, where the prop- 
 erty lost was some valuable laces, and it appeared that they had been purchased 
 by no one within living memory, but were inherited or received by gift, it was 
 
 1 Gilhooly v. New York etc. Steam Kav. » Powell v. Myers, 26 Wend. 591; Mattison 
 
 Co., 1 Daly, 197. v. New York etc. R. Co., 57 N. Y. 552; s. c. 
 
 * Louisville etc. E. Co. v. Mahan, 8 Bush, 19 AJb. L. J. 359; 8 Reporter, 440; Bloss- 
 
 184. Compare Cary v. Cleveland etc. R. Co., man v. Hooper, 16 La. An. 160; Morris v. 
 
 29 Barb. 35. Third Avenue R. Co., 1 Daly, 202. 
 
 » Penton v. Grand Trunk R. Co., 28 Upper ■ Fralofif ii. New York etc. R. Co., lOBlatchf. 
 
 Canada Q. B. 367. 16 ; Illinois etc. R. Co. v. Copeland, 24 III. 332 ; 
 
 < Jones V. Norwich etc. Transp. Co., 60 Anderson i;. North-Eastern R. Co., 4 L.T. (N. 
 
 Barb. 193. 8.) 216; s. c. 9 Week. Rep. 519; New Orleans 
 
 ' Curtis V. Avon etc. R. Co., 49 Barb. 148. etc. R. Co. v. Moore, 40 Miss. 39. 
 See Harlow v. Fitchburg R. Co., 8 Gray, 237.
 
 MEASURE OF DAMAGES FOR LOSS OF BAGGAGE. 537 
 
 Procedure — Parties to Actions. 
 
 held, nevertheless, that their value must be ascertained by a money standard 
 based on evidence, and could not be assessed upon conjecture, and that in the 
 absence of such evidence nominal damages only could be given. > But in an early 
 case in Illinois, where the plaintiff, though permitted to prove the loss and con- 
 tents of his baggage, was not allowed to testify as to the value, the court held 
 that the jury might assess his damages from their own knowledge of the values 
 of such articles, when they have heard them described.^ 
 
 The plaintiff cannot recover as damages for the loss of his baggage the expense 
 incurred in making search for it ; ^ nor the amount spent in purchasing clothing 
 and other articles of immediate necessity, in consequence of the loss of his bag- 
 gage.* Nor can damages be recovered to compensate the passenger for a loss of 
 profits which he expected in any way to derive from the contents of his trunk^ 
 and for two reasons : (1) such articles are not baggage ; * and (2) such profits 
 constitute speculative or remote damages.* 
 
 The question as to whether the plaintiff can recover interest on the amount of 
 damages up to the date of judgment is one which belongs properly to a work on 
 damages, and a discussion of the principles governing interest on unliquidated 
 damages is apart from our purpose here. It is sufHcient to say that the rule 
 which formerly prohibited the recovery of such interest has been very much 
 modified by the later decisions ; and in Iowa it has been held that, in an action 
 for the loss of baggage, the measure of damages properly included interest on 
 the value of the property from the date of the loss to the recovery.' 
 
 There is a statute in this State which provides, "That for every day's deten- 
 tion to travellers in consequence of damage as befoi'e described, and necessary 
 delay in suit for same, said companies, owners, or agents shall pay to each 
 person so delayed a sum of not less than three dollars, which amount shall be 
 added to the judgment for damages to property, should the action be sustained." * 
 This was held to apply to the delay caused by damage or injury to the baggage 
 only, and not to that consequent upon a detention of the same, or a failure to 
 deliver it.^ 
 
 § 26. Procediire — Parties to Action. — A father is the proper plaintiff in an 
 action for the loss of the baggage of his minor child.^" In Indiana, however, it 
 was held that a minor might himself maintain an action, by his next friend, for 
 the loss of his baggage containing clothing or other property given to him by 
 his parents or others." 
 
 As to the baggage of a married woman, containing her paraphernalia, the rule 
 at common law would seem to be that the husband was the proper plaintiff in 
 an action for its loss, because at common law the property in his wife's parapher- 
 
 1 Fraloff ». New York etc. R. Oo., lOBlatchf. ' Mote v. Chicago etc. R. Co., 27 Iowa, 22. 
 
 18, 8 Acts 13th Gen. Ass. Iowa, chap. 166, § 
 
 3 Illinois etc. R. Co. v. Copeland,24 111. 332. 2; Amended Code 1873, § 2183. 
 
 » Mississippi etc. R. Co. v. Kennedy, 41 » Anderson v. Toledo etc. R. Co., 32 Iowa, 
 
 Miss. 671. 86. 
 
 < New Orleans etc. R. Co. v. Moore, 40 Miss. '" Baltimore Steam Packet Co. v. Smith, 2a 
 
 39. 6 Supra, § 2. Md. 402; Grant v. Newton, 1 E. D. Smith, 05; 
 
 « Michigan etc. R. Co. v. Oehm, 56 111. 293; Sloman v. Great Western K. Co., 67 N. Y. 208. 
 
 Brock V. Gale, 14 Fla. 523. " Perkins v. Wright, 37 Ind. 29.
 
 538 passenger's baggage. 
 
 Notes. 
 
 oalia was vested in him.i But in New York the wife's paraphernalia is made a 
 legal separate estate by statute, and she is authorized to sue and be sued for 
 contracts and injuries concerning it ; '^ and therefore a suit for the loss of her 
 baggage is properly brought in her own name.^ 
 
 In the same State it has been held that the right of action against a common 
 carrier to recover the value of property intrusted to him is assignable. In such 
 A case it is proper for the assignee to sue in his own name.* 
 
 §27. Pleading — Form of Action. — The action for the recovery of damages 
 for the loss of baggage may be brought either in the form of an action ex con- 
 tractu for a breach of the contract of carriage, or in the form of an action ex 
 delicto for the conversion of the property.* But whatever form is adopted, once 
 selected, it carries with it all the incidents to the action. Thus, in an English 
 case, where the declaration was in form ex contractu, a statute depriving the 
 plaintiff of costs in an action founded on contract, in the event of recovering 
 less than £20,^ was held to apply and prevent the recovery of costs, though the 
 •complaint might have been framed as sounding in tort.' And in Pennsylvania, 
 where the process of foreign attachment will not lie upon a demand founded in 
 tort, the court held that it would not lie against common carriers to recover for the 
 loss of a trunk, where the form of the declaration is in tort and not ex contractu.^ 
 
 § 28. Competency of Plaintiff to show the Contents of Baggage. — Before 
 the changes effected by the codes of procedure which have been enacted in 
 almost aU of the States, the question of the competency of the plaintiff as a 
 witness to show the contents of his baggage was one of considerable importance, 
 and there are many adjudications upon the subject. As is well known, at com- 
 mon law a party was not permitted to testify in his own behalf ; but in the case of 
 an action for the loss of baggage, it is frequently impossible for any other per- 
 son to prove the contents of it, and hence it was repeatedly held that the plaintiff 
 was a competent witness in that respect ex necessitate rei.^ This rule was ex- 
 tended, not only to an enumeration of the articles, but to the proof of their 
 value. 1" But in Illinois the court confined the plaintiff 's testimony to an enumera- 
 tion of the articles contained in his baggage." 
 
 > McCormick v. Penn. etc. R. Co., 49 N. Y. « Porter r. Hildebrand, 14 Pa. St. 129. 
 
 304. ' Herman v. Drinkwater, 1 Me. 27; White- 
 
 2 Acts N. Y. 1860, chap. 40; Amended Acts sell r. Crane, 8 Watts & S. 369; Illinois 
 N. Y.1862, chap. 170; 4 TST. Y. Stats, at Large etc. R. Co. v. Copeland, 24 m. 332; Dibble 
 (2d ed.), 515-517: 3 Rev. Stats. N. Y., 159-162. v. Brown, 12 Ga. 217; Doyle v. Kiser, 6 
 
 3 Rawson V. Pennsylvania R. Co., 48 N. Y. Ind. 242; Garvey v. Camden etc. R. Co., 1 
 ^12; ». c. 2 Abb. Pr. (N. S.) 220; Stoneman v. Hilt. 280; Bingham v. Rogers, 6 Watts & S. 
 Erie R. Co., 52 N. Y. 429; Steamboat State of 495; Cadwallader v. Grand Trunk R. Co., 9 
 Kuw York, 7 Ben. 450. Lower Canada Rep. 169; Macdougall v. Tor- 
 
 « Merrill v. Grinnell, 30 N. Y. 594; Free- ranee, 4 Lower Canada Jur. 132. But see 
 
 man v. Newton, 3 E. D. Smith, 246. David v. Moore, 2 Watts & S. 230; Snow v. 
 
 '=> Weed V. Saratoga etc. R. Co., 19 Wend. Eastern R. Co., 12 Met. 44. 
 
 434; Porter v. Hildebrand, 14 Pa. St. 129; w WhiteseU v. Crane, supra; Bingham r. 
 
 Bayliss v. Lintott, L. R. 8 C. P. 345; s. c. 42 Rogers, supra; Mad River etc. R. Co. v. Ful- 
 
 L. J. (C. P.) 119 ; 28 L. T. (n. s.) 6G6. ton, 20 Ohio, 318. 
 
 « CountyCourts Act,30&31Vict.,c. 142,§5. " Illinois etc. R. Co. v. Copeland, 24 111. 
 
 ' Bayliss v. Lintott, L. R. 8 C. P. 345; s. c. 332; Illinois etc. R. Co. v. Taylor, 24 lU. 323; 
 
 42 L. J. (C. P.) 119; 28 L. T. (N. S.) 666. Davis v. Michigan etc. R. Co., 22 111. 278.
 
 PROCEDURE. 539 
 
 Burden of Proof — Res Gestae. 
 
 On the same principle, the rule which incapacitated the husband or wife as a wit- 
 ness for each other was relaxed in these cases. ^ But these relaxations of the 
 strict rule of the common law were not favored by the courts, and it was only in 
 those instances where no other evidence was attainable that they were permitted.'' 
 This stringency in enforcing the rule was extended to those cases where an 
 assignment of the claim had been made and it appeared that the assignment 
 was colorable merely, made for the purpose of enabling the owner of the 
 baggage to testify to its contents, and that the action was prosecuted really 
 for his benefit. The testimony of such an assignor was admitted only under the 
 same restrictions which would have been imposed had he been the plaintiff.' 
 
 So great was the inconvenience and injustice of the common-law rule, even as 
 relaxed in practice, that in several of the States statutes were enacted enabling 
 the plaintiff to testify in such cases.* 
 
 § 29. Burden of Proof. — The contract of the carrier is, to carry the baggage, 
 and at the end of the journey to deliver it safely into the hands of the passenger. 
 It is therefore enough for the passenger, in an action for its loss, to show delivery 
 to the carrier, and a failure to redeliver at the end of the journey. The burden 
 ■of showing that the loss occurred under circumstances which will excuse the 
 carrier for default rests upon the latter.* But such is not the rule where the car- 
 rier, from the circumstances of the case, is liable only as a gratuitous bailee. In 
 such a case the plaintiff must prove negligence. Thus, the defendant, a railroad 
 company, failed to deliver to a connecting line a passenger's valise containing 
 merchandise only. Such a failure was not evidence to charge the defendant with 
 negligence, who had sold the ticket and checked the baggage over both lines. ® 
 
 § 30. Res Gestae. — An agent of a railroad corporation, having charge of a 
 <Jepot, is a proper person to inquire of respecting lost baggage, and his 
 answer is part of the evidence of the loss, and admissible as res gestae.'' 
 
 » McGill V. Rowand, 3 Pa. St. 451; Smith v. 67; Van Horn v. Kermit, 4 E. D. Smith, 453; 
 
 Boston etc. R. R., 44 N. H. 325. Baltimore Steam Packet Co. v. Smith, 23 Md. 
 
 « Dibble v. Brown, 12 Ga. 217. 402; Burnell v. New York etc. R. Co.,45 N. Y. 
 
 s Bell V. Drew, 4 E. D. Smith, 59. 184; Garvey v. Camden etc. R. Co., 1 HUt. 
 
 * Stats. Mass. 1851, chap. 147, § 5; Harlow 280; Steamboat State of New York, 7 Ben. 450. 
 
 V. Fitchburg R Co., 8 Gray, 237; Rev. Stat. « Stimson r. Connecticut River R. Co., 98 
 
 Mo. 1855, p. 4:}5, § 45; Nolan v. Ohio etc. R. Mass. 83. But see Steers v. Liverpool etc. 
 
 €o., 39 Mo. 114; Laws N. Y. 1850, p. 232; 2 Steam Co., 57 N. Y. 1. 
 
 Rev. Stats. N. Y. 540, § 54. ? Curtis v. Avon etc. R. Co., 49 Barb. 148; 
 
 ' Camden etc. R. Co. v. Baldauf, 16 Pa. St. Morse v. Connecticut etc. R. Co., 6 Gray, 450.
 
 CHAPTEE XVII. 
 
 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Leading Case : McCall v. Forsyth. — Action may be ex contractu or ex delicto* 
 
 Notes: § l. Jurisdiction of suits against carriers. 
 
 2. Carrier may be sued in contract or tort. 
 
 3. Form of the action — Trespass or case. 
 
 4. Joint and several liability. 
 
 5. Difference in measure of damages between actions ex con- 
 
 tractu and actions ez delicto. 
 
 6. Abatement and revival. 
 
 7. Wbo may sue. 
 
 (1.) Master or parent for loss of service of servant or child. 
 
 (2.) Foreign administrator. 
 
 (3.) Husband for wife. 
 
 (4.) Wife in her own name. 
 
 (5.) Assignee of the cause of action. 
 
 8. Counts in the declaration. 
 
 9. Particularity of statement in the declaration or complaint. 
 
 (1.) in actions ex delicto . 
 (2.) In actions ex contractu. 
 
 10. Allegations under statutes giving a right of action where the 
 
 damages resulted in death. 
 
 11. Allegation of the carrier's duty. 
 
 12. Allegation of damages. 
 
 13. Whether the plaintiff must deny contributory negligence. 
 
 14. Particularity of statement in the defensive pleadings. 
 
 15. Variance between allegation and proof. 
 
 16. Points of evidence. 
 
 (1.) Presumptions. 
 
 (2.) Want of skill in the carrier's servant. 
 
 (3.) Bes gestae. 
 
 (a.) Declarations of the plaintiff. 
 
 (6.) Conduct of the other passengers. 
 
 (c.) Conduct of the defendant. 
 
 (d.) Statements of the defendant's servants. 
 (4.) Testimony of expert witnesses. 
 (5.) Opinions of non-expert witnesses. 
 (6.) Other matters. 
 
 17. Province of court and jury. 
 
 18. Demurrer to evidence. 
 
 19. All damages, present and prospective, may be recovered. 
 
 20. Permanent injuries — Life-tables. 
 
 21. Damages should be obvious, and not conjectural or speculative. 
 (540)
 
 ACTION EX CONTRACTU OR EX DELICTO. 541 
 
 Supreme Court of Pennsylvania. 
 
 Notes: § 22. The same rules as to the measure of damages apply to corpo- 
 rations as to individuals. 
 
 23. Elements of damage. 
 
 24. Continued — Wealth of defendant — Circumstances of plain- 
 
 tiff — Disfigurement of person — Character of plaintiff — 
 Expense of litigation — "Value of gratuitous nursing. 
 
 25. Continued — Damages which may be recovered by husband 
 
 and wife jointly suing — Recovery by father for injury to 
 child. 
 
 26. Mitigation of damages. 
 
 27. Exemplary damages. 
 
 (1.) May be awarded, when. 
 
 (2.) When corporations are liable. 
 
 (3.) Questions of law and questions of fact. 
 
 28. Excessive damages — When appellate courts will reverse judg- 
 
 ments on account of. 
 
 29. Illustrations. 
 
 (1.) For wrongfully ejecting passenger. 
 
 (2.) For removal of a passenger from a train at a place not 
 
 a regular station. 
 (3.) For refusal to admit passenger to a car — Colored 
 
 person. 
 (4.) For assault upon passenger by carrier's servants. 
 (5.) For carrying passenger beyond his destination. 
 (6.) For injury to passenger in railroad accident. 
 (7.) For injury to passenger getting on or off a railroad train. 
 (8.) For injury to passenger by accident to stage-coach. 
 
 ACTION MAY BE EX CONTRACTU OR EX DELICTO. 
 
 McCall V. Forsyth.* 
 
 Supreme Court of Pennsylvania, 1842. 
 
 Hon. John Bannister Gibson, Chief Justice. 
 *' Charles Huston, 
 " John Kennedy, 
 ** Thomas Sergeant, 
 «' MoLTON C. Rogers, 
 
 - Justices 
 
 For the injury done to a passenger by the negligence of the carrier, he may sue either In 
 assumpsit or in case; if in the former, in order to recover he must prove the liability of 
 all the parties sued ; if in the latter, he may recover against those of the defendants 
 who are liable. 
 
 Error to the District Court of Allegheny County. John Forsyth 
 brought this action on tlie case against WilHatn McCall, Abraham Hor- 
 
 * Reported, 4 Watts & S. 179.
 
 542 REMEDIES , PKOCEDURE, AND DAMAGES. 
 
 McCall V. Forsyth. 
 
 bach, Samuel Reishei*, James Spratt, and Samuel Elder, to recover 
 damages for an injury done to him by the upsetting of the defendants* 
 stage. McCall and Horbach were alone served with process, and for 
 them alone was there any appearance or plea. 
 
 The defendants took the ground that the plaintiff could not recover 
 unless he proved that all the defendants sued were partners, or part- 
 owners of the stage in which the plaintiff received the injury alleged in 
 his declaration. 
 
 Grier, President, instructed the jury that the plaintiff's position was 
 not untenable ; and the jury rendered a verdict for the plaintiff for 
 $500 damages. 
 
 Dunlop, for plaintiff in error. — The point raised has been differently^ 
 decided in England. In the Common Pleas, ^ it was held to be an 
 action ex contracUi; but this was reversed in the King's Bench and 
 Exchequer. 2 In Pennsylvania, the doctrine of the Common Pleas has 
 been recognized and expressly sanctioned. ^ The leading cases on the 
 subject are found in 2 Show. 478 ; 3 Lev. 258. 
 
 It was originally called an action of assumpsit, though in form a suit 
 on the custom of the realm, and it was held could not be joined with 
 trover.'* Lord Ellenborough required parties to be joined in an action 
 of deceit in a warranty by two.^ It is also worthy of consideration 
 that if the doctrine of the court below be sustained, it leads to the 
 result that the whole burden of the misfortune may be thrown upon 
 one of the owners, without the right to resort to the others for con- 
 tribution.^ 
 
 Flndlay, contra. — The principle seems to be clearly recognized that 
 the party may elect to sue on the contract, or charge the defend- 
 ants in an action on the case sounding in tort ; and there is no reason 
 why he should be deprived of this election. The cases cited on the 
 other side are those of non-feasance, whereas this is a case of misfeas- 
 ance ; and this distinction is taken by Kennedy, J., in 7 Watts, 79. We 
 think the point is clearly settled in England by the highest tribunals.'' 
 
 The opinion of the court was delivered by — 
 
 Rogers, J. — We affirm this judgment, on the authority of the cases- 
 of Bretherton and others,^ Ansell v. Waterhouse,^ and Bank of Orange 
 
 > Powell r.Layton, 5 Bos. &Pul. 365; Max '7 Eng. Com. Law Rep. 343; Ansell v. 
 
 V. Roberts, 6 Bos. & Ful. 454. Waterhouse, 2 Chit. 1. See also Bank of 
 
 - Max V. Roberts, 12 East, 89; Govett v. Orange v. Brown, 3 Wend. 158; Zell v. Ar- 
 
 Radnidge, 3 East, 62. nold, 2 Pa. 295. 
 
 3 Wilt V.Welsh, 6 Watts, 9; Hunt v.Wynn, » Bretherton v. Wood, 7 Eng. Com. Law 
 
 6 Watts, 47; McCahan v. Hirst, 7 Watts, 175. Rep. 343; 3 Brod. & B. 54. 
 
 « 1 Salk 100. 9 Ansell i: Waterhouse, 18 Eng. Com. Law 
 
 6 Beall V. King, 12 East, 452. Rep. 227; 2 Chit. 1. 
 
 • Merryweather v. Nixan, 8 Term Rep. 186.
 
 JURISDICTION OF SUITS AGAINST CARRIERS. 543^ 
 
 Notes. 
 
 V. Brown,^ to which may be added Zell v. Arnold.^ Justice Savage, 
 in Bank of Orange v. Brown,^ reviews all the authorities which bear 
 on the question, and comes to the conclusion (in which we concur) that 
 the true rule is, that an action solely on the custom is an action of tort ; 
 that the plaintiff has his choice of remedies, either to bring assximpsit or 
 case ; and that when one or other form of action is adopted, it must be 
 governed by its own rules ; that an action against a common carrier 
 upon the custom is founded on a breach of duty, — that it is a tort or 
 misfeasance. The declaration here is for a tort or misfeasance ear 
 delicto, and not in contract ; the plea, not guilty ; and from this follows 
 that the action is joint or several, and as a necessary consequence a 
 recovery may be had of one for an injury done by two or more of the 
 joint tort-feasors. 
 
 There was, therefore, no error in ruling that it was unnecessary to 
 prove that all the defendants were partners, because they were jointly 
 and severally liable for tort or misfeasance charged in the declaration. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 1. Jurisdiction of Stilts against Carriers. — It has been held by the Court 
 of Appeals of Virginia that a railroad corporation chartered in another State, by 
 the act of leasing a railroad situated in Virginia, makes itself, quoad hoc, a Vir- 
 ginia corporation, so that, when sued in the courts of Virginia, it is not entitled 
 to remove the suit to the United States Circuit Court ; * but, notwithstanding the 
 respect which is due to the judgments of this court, we think, in view of 
 decisions of the Supreme Court of the United States upon analogous questions, 
 this question must still be considered as open. The Supreme Court of Indiana 
 holds that that State has concurrent jurisdiction with the State of Kentucky over 
 torts committed on the Qhio River, and that the Indiana statute giving damages 
 where the death of a person is caused by the wrongful act or omission of 
 another extends to suits against a carrier for the killing of a passenger on the 
 Ohio River between the States of Indiana and Kentucky.^ The Court of Appeals 
 of New York has held that the Supreme Court of that State has jurisdiction of 
 an action against the owners of a steamboat navigating the waters of Lake 
 Charaplain for causing the death of a passenger by negligence, while such pas- 
 senger was on their boat plying between points within the State of New York.* 
 
 1 Bank of Orange v. Brown, 3 Wend. 158. R. Co., 5 B. I. 233; Goshen v. Supervisors, 1 
 
 2 Zcll V. Arnold, 2 Pa. 297. W. Va. 308; Pennsylvania R. Co. v. Sly, 65 
 8 Bank of Orange v. Brown, 3 Wend. 158. Pa. St. 205; Pomeroy v. New York etc. K. 
 < Baltimore etc. R. Co. v. Wightman, 29 Co., 4 Blatchf. 122). 
 
 Gratt. 431 (citing Baltimore etc.. K. Co. v. ' Slierlock v. Ailing, 44 Ind. 184. 
 
 Gallahue, 12 Gratt. 655 ; Railroad Co. v. Har- « Dougan v. Cliamplain Transp. Co., 66 N. 
 
 ris, 12 Wall. 65; Maryland v. Northern etc. Y. 1. 
 R. Co., 18 Md. 193; Sprague v. Hartford etc.
 
 544 REMEDIES, PUOCEDUUE, AND DAMAGES. 
 
 Notes. 
 
 In New York, wliei'e the action is for tlie loss of baggage, it is uot necessary to 
 aver that the plaintiff was without fault.' 
 
 An action may be brought in rem against a vessel for the death of a person, 
 caused by the negligence of the officers of such vessel.'^ Statutes giving an action 
 where the injury resulted in death, although applicable to marine torts, do not 
 infringe the jurisdiction of the Federal courts ; nor do they infringe the commer- 
 cial power of Congress.^ Where a statute* giving an action for the death of a 
 person, caused by a wrongful act, also provides " that such action shall be 
 brought for a death caused in this State, and in some court established by the 
 Constitution and laws cf the same," it does not prevent the removal of the 
 action to the Federal court and maintaining it there by a non-resident plaintiff, 
 under the act of Congress of March 2, 1867.^ 
 
 § 2. Carrier may be sued in Contractor Tort. — Declarations against car- 
 riers in tort are as old as the law, and continued till Dale v. Hall,^ when the 
 practice of declaring in assumpsit succeeded ; but this practice does not super- 
 sede the other.' When the relation of carrier and passenger is once formed, the 
 law steps in and annexes to the carrier certain duties, for the non-performance 
 of which the passenger may bring an action of tort; and this is the kind of 
 action which is usually brought when the passenger is injured through the negli- 
 gence of the carrier or his servants, or through violence and force used by 
 either.* Whilst there has never been any doubt that the injured passenger may 
 bring an action of tort, it is equally clear that he may, if he chooses, waive the 
 tort and sue in assumpsit; ^ and accordingly as the action is in contract or tort, 
 the incidents of each form of action attach. In States which practice under 
 codes by which the common- law forms of action are abolished, whether such an 
 action is to be deemed an action ex contractu or ex delicto is to be determined 
 by the nature of the grievance rather than by the form of the declaration ; and 
 where the breach of duty was a failure to put the passenger off at the proper 
 station, it was treated as an action for a tort, so that exemplary damages might 
 
 » Richards r. Westcott, 2 Bosw. 589. 158; McCall ». Forsyth, 4 Watts & S. 179; 
 
 2 The City of Brussels, 6 Ben. 370. See Pennsylvania R. Co. v. The People, 31 Ohio 
 
 also Ryall v. Kennedy, 8 Jones & Sp. 347; St. 537; Heirn v. McCaughan, 33 Miss. 17; 
 
 Plummer v. Webb, 1 Ware, 75; Boutiller ?;. Cregin v. Brooklin etc. R. Co., 75 N. Y. 192; 
 
 Milwaukee, 8 Minn. 97; Glaholm v. Barker, Saltonstall v. Stockton, Taney's Dec. 11; 
 
 L. R. 1 Ch. App. 223; s. c. L,. R. 2 Eq. 598; Frink v. Potter, 17 111. 406; New Orleans etc. 
 
 Smith V. Brown, L. R. 6 Q. B. 729. R. Co. v. Hurst, 36 Miss. 660; Ames v. Union 
 
 s Steamboat Co. v. Chase, 16 Wall. 522; R. Co., 117 Mass. 541. An action, under the 
 
 Sherlock v. Ailing, 93 U. S. 99 (affirming s. c. practice in Ohio, against a foreign corpora- 
 
 44 Ind. 184). tion for a personal injury was held to be in 
 
 * Rev. Stats. Wis. 1878, p. 1020, § 4255. contract, within the meaning of that section 
 
 5 Railway Co. v. Whitton, 13 Wall. 270. of the code which permits attachments to 
 r.ut see Whitton v. Chicago etc. R. Co., 25 issue in aid of suits where the claim is a 
 Wis. 424. debt or demand arising upon a contract, 
 
 6 1 Wils. 281. judgment, or decree. Pennsylvania R. Co. 
 ' Bayley, J., in Ansell v. Waterhouse, 2 v. The People, 31 Ohio St. 537. Compare 
 
 Chit. 1 ; s. c. 6 Mau. & Sel. 385. . Sawyer v. Dulaney, 30 Texas, 479. 
 
 8 Ansell V. Waterhouse, supra; Brether- ^ Taney, C. J., in Saltonstall r. Stockton, 
 
 ton I'. Wood, 6 J. B. Moo. 141; g. c. 3 Bred. & Taney's Dec. 11; Frink r. Potter, 17 111. 406, 
 
 B. 54; Bank of Orange v. Brown, 9 Wend. 411.
 
 FORM or ACTION. 545 
 
 Joint and Sev^eral Liability. 
 
 be awarded. 1 Accordingly, such an action has been held not the less an action 
 for a tort because it demanded judgment for a specific sum of money .^ 
 
 The gravamen of such an action being a breach of a public duty, privity of con- 
 tract is not necessary to support it; persons may sue who are on the carrier's 
 vehicle by license merely ; ^ and so may a mail-agent, who has no contract directly 
 v\ith the carrier.* 
 
 §3. Form of the Action — Trespass or Case. — Where the common-law 
 forms of action obtain, the remedy is generally case, and not trespass ; '" but it 
 is well settled that an action of trespass will lie against a corporation,* and such 
 actions are frequently sustained against incorporated carriers for trespasses 
 of their servants.^ 
 
 § 4. Joint and Several Liability. — When it is understood that the action may 
 be in tort, all the consequences of such an action follow. Where a person is 
 injured by the joint wrong of several persons, he is under no obligation to join 
 all of them in his suit, but he may bring his action against any one whom he 
 may catch. It is therefore not a good plea in abatement to such an action that 
 the carrier was one of a partnership firm and that his copartners are not joined 
 as defendants.* This rule applies where the suit is against the carrier for the 
 loss of goods, as well as where it is for an injury to a passenger.* Thus, where 
 an action was against the master and unknown owners of a steamship for the 
 value of a lost trunk, and the master alone answered, and it did not appear that 
 a citation had been issued for the owners, the plaintiff was allowed to enter a 
 nolle prosequi as to the parties not served.'" So, where a person in one train is 
 injured by a collision between the train in which he is and another train, belong- 
 ing to another carrier, he may sue both companies together, or either of them 
 separately.il For the same reason, if several are jointly sued, a verdict in favor 
 of part of them is good.'^ 
 
 § 5. Difference in Measure of Damages between Actions Ex Contractu and 
 Actions Ex Delicto. — There is another light in which the question whether the 
 action is in contract or in tort assumes importance. If the action is for the 
 breach of a contract merely, the plaintiff cannot recover damages for disappoint- 
 
 » New Orleans etc. R. Co. v. Hurst, 36 ' St. I ouis etc. R. Co. v. Dalby, 19 111. 353. 
 
 Miss. 660. 8 Ansell v. Waterhouse, 2 Chit. 1; s. c. 6 
 
 2 Hammond v. North-Eastern R. Co., 6 Mau. & Sel. 385 ; Stockton r. Frey, 4 Gill, 406; 
 
 So. Car. 130. For an example of declarations McCall v. Forsyth, 4 Watts & S. 179, ante, p. 
 
 where the action was held founded upon a 541. 
 
 contract, see Bayliss v. Lintott, L. R. 8 C. P. " Bank of Orange v. Brown, 3 Wend. 153. 
 
 345; 8. c. 42 L. J. (G. P.) 119; 28 L. T. (N. 8.) »o Forbes v. Davis, 18 Texas, 268. 
 
 6ti{;. " Colegrove v. New York etc. R. Co., 6 
 
 ■i Ante, p. 44. Duer, 382. It was heliJ that even if it was a 
 
 * Hammond v. North-Eastern R. Co., 6 misjoinder to sue both companies together. 
 
 So. Car. 130; Kolton v. Western R. Corp., yet it was cured by answering and omitting 
 
 unte, p. 3". to demur. Ibid. 
 
 ^ Havens ». Hartford etc. R. Co., 28 Conn. 12 Bretherton «. Wood, 6 J. B. Moo. 141; 
 
 €9. «. c. 3 Brod. & B. 54; 9 Price, 408; Gunn 
 
 6 Sabin r. Vermont etc. R. Co.,25 Vt. :163; v. Dickson, 10 Upper Canada Q. B. 461; 
 
 E istern Counties R. Co. v. Broom, 6 Exch. Frink v. Potter, 17 111. 406, 411. 
 314; a. c. 15 Jur. 297; 20 L. J. (Exch.) 196. 
 
 35
 
 546 REMEDIES, PUOCEDLKE, AND DAMAGES. 
 
 Notes. 
 
 merit, sense of wrong, and injury to the feelings. Tlius, where the complaint 
 was that the defendant agreed with the plaintiff and a large number of others to 
 convey them to a certain place where a religious meeting was held on Sunday, 
 and to bring them back at a certain appointed time, and that the defendant 
 failed so to bring them back, it was held that this was a suit on a special con- 
 tract, for the reason that the defendant was under no legal duty as a public 
 carrier to carry passengers on Sunday ; and it being on a special contract, dam- 
 age for injured feelings could not be recovered. • Nor can exemplary damages be 
 recovered where the action is on the contract,^ the rule being that, " in actions foi' 
 breaches of contract, damages must be such as are capable of being estimated 
 or appreciated." ^ But where the action is for a tort, founded on a breach of a 
 public duty, exemplary damages may be given.* 
 
 § C. Abateraent and Revival. — Although such an action is in tort, it does not 
 abate by the death of the plaintiff — where the husband sues" for the loss of the 
 services of his wife — under the Revised Statutes of New York.^ Where a 
 child died on a voyage from Liverpool to New York, in consequence of the neg- 
 ligence of the officers of the ship, as was alleged, it was held, in the United 
 States District Court, that an action against the carrier by the father was au 
 action in contract ; that it hence survived to him as administrator, and might be 
 sued for in rem.^ 
 
 § 7. Who may sue. — (1.) Master or Parent, for Loss of Service of Servant or 
 Child. — Where the action is on a contract to carry, it can only be brought by 
 one who was a party to the contract, and who has been injured by a breach of it. 
 An action ex contractu vpill not, therefore, lie against a caiTier in favor of the 
 master for an injury to his servant whereby he loses the benefit of his services, 
 where the contract to carry was between the carrier and the servant.' For the 
 same reason, a widowed mother cannot sue for an injury dune to her minor child 
 by a carrier while carrying him.^ These cases cannot be supported on principle. 
 When it is conceded that the foundation of the action against the carrier for an 
 injury to his passenger is a tort, and that the injury does not necessarily con- 
 sist in the breach of the contract,* it seems logically to follow that privity 
 of contract is not necessary to support such an action, and that any one who 
 has sustained direct damage by the carrier's breach of duty may sue, provided 
 the carrier owed the duty to him ; and this is the view taken by the Supreme 
 Judicial Court of Massachusetts, which holds that a master may, in such a case, 
 maintain an action against the carrier for an injury to his apprentice quod ser- 
 vitium amisit.^'> Circumstances may, it is supposed, exist where the contract for 
 
 1 Walsh V. Chicago etc. R. Co., 42 Wis. 23. ' Alton v. Midland R. Co., 19 C. B. (N. s.) 
 
 2 New Orleans etc. R. Co. v. Hurst, 36 213 ; Fairmount etc. R. Co. v. Stutler, 54 Pa. 
 Miss. 660. * St. 375. 
 
 3 Pollock, C. B., in Hamlin v. Great s Fairmount etc. R. Co. v. Stutler, supra. 
 Northern R. Co., 1 Hurl. & N. 408, 411. Compare Kenuard v. Burton, 25 Me. 39; «. c. 
 
 * Helm V. McCaughan, 32 Miss. 17, infra, 1 Thomp. on Neg., p. 368. 
 
 § 27. 9 Supra, § 1. 
 
 5 2 Rev. Stats. N. T. 447, §§ 1, 2; Cregin v. i" Ames v. Union R. Co., 117 Mass. 541 
 Brooklyn etc. R. Co., 75 N. Y. 192 (distin- citing 1 Chit. PI. (3 Am. ed.) 47; Reeve's) 
 guishing Wade u. Kalbfleisch, 58N. Y. 2S2). Dom. Rel. 376; Bac. Abr., tit. " Master and 
 
 6 The City of Brussels, 6 Ben. 370. Servant," O; McCarthy v. Guild, 12 Met(',_
 
 WHO MAY SUE. 647 
 
 Particularity of Statement. 
 
 the carriage of the servant is between the master, or parent, and the carrier, 
 in which case, in either view of the question, the right of action would be in 
 the master or parent. 
 
 (2.) Foreign Administrator. — Whether an action for the death of a passenger 
 can be brought by a foreign administrator is a question of local policy, which 
 must be answered by the statutes and decisions of each State. The general rule 
 is that no suit can be maintained by an administrator or executor in any other 
 country except that from which he derives his authority. ^ In Indiana such an 
 action may be brought, and the right of action in such a case can only be ques- 
 tioned by a plea under oath.^ In Georgia, a foreign administrator could sue 
 where the intestate departed this life out of the State.^ 
 
 (3._) Husband for Wife. — In Massachusetts, a passenger who, having a free 
 pass for himself, bought a ticket for his wife, and delivered to the carrier her 
 trunk without informing him that it was not his, could maintain an action in his 
 own name for the loss of the trunk ; * but the case is not very clear. 
 
 (4.) Wife in her own Name. — In New York, a wife may sue a carrier in her own 
 name for the loss of baggage consisting of hw wardrobe ; ^ and the same rule 
 has been applied in a suit in admiralty .^ 
 
 (5.) Assignee of the Cause of Action. — In New York it has been held that the 
 claim of a passenger against a carrier for the loss of baggage may be assigned, 
 and that the assignee may bring suit thereon in his own name.' 
 
 § 8. Counts in the Declaration. — In Massachusetts — and this is supposed 
 to be the general rule where the old system of pleading prevails — the plaintiff 
 may set forth his cause of action in different ways, in different counts of his 
 declaration. Thus, he may charge in one count that the defendant ran over 
 him while he was in the roadway ; in another, that the defendant committed an 
 assault and battery upon him ; and in another, that he was a passenger upon the 
 defendant's car, riding upon the platform thereof, and that the driver wrongfully 
 and carelessly compelled him to jump therefrom without checking its speed, 
 whereby he was injured, etc.^ 
 
 § 9. Particularity of Statement in the Declaration or Complaint. — (1.) In 
 Actions Ex Delicto. — When an accident happens in consequence of the failure or 
 breaking down of the carrier's means of transportation, it is impossible in many 
 cases for the passenger to know just how the accident was brought about; and 
 
 291; Dennis ». Clark, 2 Cush. 347; Rice v. * Malone v. Boston etc. R. Co., 12 Gray, 
 
 Nlckerson, 9 Allen, 478; Kennedy v. Shea, 110 388. 
 
 Ma68. 147; Martinez v. Gerber, 3 Scott's N. » Fraloff v. New York etc. R. Co., 10 
 R. 386; 8. c. 3Man. &G. 88; HadsoU v. Stalle- Blatchf. 16; s. c. affirmed, ante, p. 502 ; Raw- 
 brass, 11 Ad. & E. 301 ; Hall v. Hollander, 4 son v. Pennsylvania R. Co., 48 N. Y. 216. 
 Bam. & Cress. 660; Woodward v. Washburn, « The State of New York, 7 Ben. 450. See 
 3 Denio, 369. See also 2 Thomp. on Neg., p. 2 Thonip. on Neg., p. 1240. 
 1242. ' Freeman v. Newton, 3 E. D. Smith, 246. 
 
 ' South- Western R. Co. v. Paulk, 24 Ga. * Lovett v. Salem etc. 11. Co., 9 Allen, 557. 
 
 366, citing many authorities. See also Baltimore etc. R. Co. v. Wilkinson, 
 
 2 Jeffersonville R. Co. v. Hendricks, 26 30 Md. 224, 230; Toledo etc. R. Co. ». Daniels, 
 Ind. 228. 21 Ind. 256; Wright v. Indianapolis etc. R. 
 
 3 South- Western R. Co. ». Paulk, 24 Ga. Co., 18 liid. 168; Jetfersouville etc. R. Co. v. 
 356; Cobb's Dig. Ga. Stats. 341. Vancant, 40 Ind. 2;«.
 
 548 REMKDIKS, PROCEDURE, AND DAMAGES. 
 
 Notes 
 
 the rule being, as already seen, that the fact that such accident happened is 
 prima facie evidence of negligence on the part of the carrier, it is obviously 
 unnecessary for the passenger to allege the particular cause of the accident.' 
 In some jurisdictions it is sufficient to allege in general terms that the accident 
 was the result of the carrier's negligence.^ But a count alleging in general 
 terms that the plaintiff was in the car of the defendant, and was thrown there- 
 from by the carelessness of the defendant, is too general in its description of the 
 manner in which the injury was sustained.^ Where the plaintiff was injured by 
 jumping from the defendant's railway car, it was held sufficient to allege that, by 
 reason of the negligence and carelessness of those operating the car, it became 
 dangerous to remain in the car, that the plaintiff 's life and limbs were en- 
 dangered by so remaining, and that in order to get out of such danger and to 
 preserve his life and limbs he was obliged to jump from the car, whereby he 
 was greatly hurt, etc., without alleging the particular circumstances which ren- 
 dered it unsafe to remain in the car, or how or by what means his life and limbs 
 were endangered.* An allegation that the carrier's vehicle was so negligently 
 provided, fitted out, etc., that It broke down, is sufficient, without stating in 
 what particular respect it was negligently provided, fitted out, etc., or how it 
 broke do-\vn.^ An allegation that it was the duty of the defendant to use due 
 and proper care in conveying the passenger, and that he did not use due and 
 proper care, has been held a sufficient allegation of a duty and a breach thereof, 
 after verdict, on a motion in arrest of judgment.^ 
 
 In an action against a railway company for an injury to a passenger, it is not 
 necessary to state that the defendants had power by their charter to become 
 common carriers; it will be sufficient to allege that they were owners of the 
 road on which the injury happened; that they were, at the time of the injury, 
 running passenger-trains thereon ; and that they agreed, for a certain reasonable 
 reward paid to them, to carry the plaintiff." A declaration by husband and wife 
 for a personal injury to the wife will not be bad, after verdict, because it alleges 
 tliat by reason of the injury which she received the plaintiffs were obliged to 
 expend $200 in effecting her cure. Though a recovery cannot be had in the 
 same action for a personal injury to the wife and for the expenses attending her 
 recovery, yet an allegation touching the latter subject will be regarded as merely 
 descriptive of the extent of the injury, and it will be presumed that the trial 
 court confined the evidence to the only ground of recovery which was the gist 
 of the action, namely, the wife's personal injury .^ It is no misjoinder of counts 
 for the declaration to allege in one count that the promise was made to the wife, 
 aud in another that it was made to the plaintiffs, where the language of the 
 latter count showed that the promise was made for the wife's benefit.* 
 
 An allegation that the price of the ticket was seventy cents ; that the plaintiff, 
 in the train, when the ticket or fare was demanded by the conductor, tendered 
 this amount, which was refused; that the conductor, for the purpose of robbing 
 
 1 Carmanty v. Mexican Gulf Co., 5 La. An. * Eldridge v. Long Island R. Co.. 1 Sandf. 
 703; Weed v. Saratoga etc. R. Co., 19 Wend. S. C. S9. 
 
 634. 6 Ware v. Gay, 11 Pick. 106. 
 
 « Allender v. Chicago etc. R. Co., 37 Iowa,, « Taylor v. Day, 16 Vt. 566. 
 
 264. 7 Fuller v. Naugatucli R. Co., 21 Conn. 557. 
 
 3 Central R. Co. v. Van Horn, 3S X. J. L. « Ibid. 
 
 133. 9 Ibid.
 
 PARTICULARITY OF STATEMEhfT. 549 
 
 Under Statutes in Case of Death. 
 
 and oppressing him, demanded one dollar and five cents, and, upon his failure 
 to pay it, compelled him to leave the train, makes out a good cause of action on 
 demurrer; for it is not to be presumed, without evidence, that the company 
 made a distinction between ticket-fare and train-fare, and that the one dollar and 
 five cents mentioned in the complaint was the train-fare fixed by the company. i 
 In Illinois, the declaration in an action for lost baggage need not aver that the 
 plaintiff was a passenger ; this may be proved without an averment, by proof of 
 the fact that a check for the baggage was given by the defendant to the plaintiff.' 
 Where the injury complained of was the wrongful ejection by the conductor of 
 a railway company of the plaintiff from its cars, it was held not necessary to 
 allege or prove that specific authority was conferred by the company upon the 
 conductor to perform such acts, for the court will take cognizance of the duties 
 of conductors as pointed out by the statute.^ Where the complaint shows that 
 the plaintiff was rightfully upon the defendant's railway train as a passenger, 
 and that the servants of the defendant wrongfully struck and threw the plaintiff 
 from the cars, it sufficiently shows that the wrong complained of was committed 
 by the servants of the defendant in their employment of running the train.* 
 
 (2.) In Actions Ex Contractu. — In an action for fare v?rongfully demanded and 
 collected from a passenger, it has been held that the plaintiff's declaration or 
 claim must state not merely a claim for so much "money had and received," 
 but he must state that the defendants received the money; that they received it 
 from the plaintiff, and, most important of all, that they received it to the plain- 
 tiff 's use.* 
 
 § 10. Allegations under Statutes giving a Right of Action where the Dam- 
 ages resulted in Death. — These statutes and the decisions under them have 
 been considered at large in the author's work on Negligence.^ In Illinois, the 
 declaration in an action under such a statute must aver that the railroad on 
 which the injury happened was used by the defendants in the county and State 
 in which the action is brought, or it will be bad on demurrer, though it will be 
 good after verdict.' In Illinois, Indiana, Wisconsin, and New York, it must 
 also state that the deceased left a widow and next of kin, to whom damages can 
 be distributed.^ But in Virginia it is not necessary that the declaration state 
 that the deceased left a family, or that the action is prosecuted for their benefit.* 
 It has been held in the United States Circuit Court, by Mr. Justice Davis, that 
 it is not necessary ^° that the declaration should contain an express averment 
 
 ' Avery v. Atchison etc. R. Co., 11 Kan. R. Co. v. Fitzgerald, 47 Ind. 79; Indianapolis 
 
 448. etc. R. Co. v. Hamilton, 44 Ind. 76. 
 
 - Illinois etc. R. Co. v. Copeland, 24 111. <> Bennett v. Railroad Co., 7 Pliila. 11. 
 
 332. • 2 Thomp. on Neg., pp. 1272-1309. 
 
 ' Travers v. Kansas etc. R. Co., 63 Mo. 421; i Chicago etc. R. Co. v. Morris, 26 111. 400. 
 
 Wag. Stats. Mo. 307, § 28. * Chicago etc. R. Co. v. Morris, supra; In- 
 
 < Pittsburgh etc. R. Co. v. Thcobold, 51 dianapolis etc. R. Co. v. Keely, 23 Ind. 133; 
 
 Ind. 246 (citing Evansville etc. R. Co. v. "Woodward v. Chicago etc. R. Co., 23 Wis. 
 
 Baum, 26 Ind. 70; Jefferson ville R. Co. v. 400; Safford r. Drew, 3 Duer, 627. 
 
 Rogers, 38 Ind. 116; Indianapolis etc. R. Co. '■• Baltimore etc. R. Co. v. Wightman, 29 
 
 V. Anthony, 43 Ind. 183; Terre Haute etc. R. Gratt. 431, 440. 
 
 Co. V. Graham, 46 Ind. 239; Terre Haute etc. '<' Under the Illinois statute of February 
 
 12, 1853.
 
 550 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 showing the manner in which the next of kin have sustained pecuniary loss. 
 The action can be sustained though the next of kin had no legal claim on the 
 deceased for services or support, the object of the statute being to make car- 
 riers more careful of the lives intrusted to their care.^ This case was affirmed 
 by the Supi-eme Court of the United States ; ^ but the interpretation there put 
 upon the statute was subsequently denied by the Supreme Court of Illinois.* 
 
 §11. Allegation of the Carrier's Duty. — It has been held, in a case which 
 underwent a learned discussion, that a declaration in assumpsit for the loss of 
 a passenger's baggage was not bad because it alleged the duty of the defendant 
 to convey the plaintiff and his baggage "safely and securely." The words 
 ''safely and securely" did not necessarily import a more extended duty than 
 that of ordinary care.* So, a declaration against a carrier which alleges that it 
 became his duty to carry the plaintiff safely, does not mean safely at all events, 
 but will be supported by proof of a want of due care.* 
 
 § 12. Allegation of Damages. — Under the common allegation ad damnum, 
 only those damages can be recovered which necessarily result from the act 
 complained of, and which are properly termed general damages. The reason i-s, 
 that the defendant must be presumed to be aware of the necessary consequences 
 of his conduct, and therefore cannot be taken by surprise in the proof of them. 
 But damages which do not necessarily flow from the principal fact, though 
 possibly attendant upon it, are denominated special. To prevent surprise to 
 the defendant, such damages must be particularly specified In the declaration, 
 or else the plaintiff will not be permitted to give evidence of them. Under the 
 head of general damages may be classed the direct expenses incurred by the 
 plaintiff in consequence of the injury; the loss of his time, the bodily and mental 
 suffering he has endured, and any incurable hurt inflicted ; for these • may be 
 classed among the necessary results of the injury. But damages arising from 
 the circumstance of the injured passenger being the head of a dependent 
 family are classed as special damages, since they have no necessary connection 
 with the injury. They must, therefore, be specially averred in order to let in 
 evidence of thera.^ An allegation that by reason of the failure of the defendant 
 to carry the plaintiff according to his contract, the plaintiff " was subjected to 
 great inconvenience and injury," is sufficient to let in proof that the plaintiff 
 became sick by reason of not being furnished with a sufficient quantity of bed- 
 clothing; for this is general, and not special, damage.' A passenger wrong- 
 fully ejected from a train at night, offered to prove at the trial that at the 
 time he was put off the cars his wife was pregnant and within four months 
 of conflnement, and that after his ejection from the cars he suffered great 
 anxiety and distress of mind on her account, believing that she would be much 
 
 1 Barron v. Illinois etc. R. Co., 1 Biss. 412, * Harris v. Costar, 1 Car. & P. 636. 
 
 453. « Laing v. Colder, 8 Pa. St. 479 (citing 
 
 2 Railroad Co. v. Barron, 5 Wall. 90. Sampson v. Coy, 15 Mass. 493). See also Ohio 
 
 3 Chicago etc. R. Co. v. Shannon, 43 111. etc. R. Co. v. Selby, 47 Ind. 471. 
 
 338; s. c. 1 Ch. Leg. N. 105. ' Roberts v. Graham, 6 Wall. 578 (citing 
 
 * Ross V. Hill, 2 C. B. 877. Ward v. Smith, 11 Price, 19).
 
 ALLEGATION OF DAMAGES. 551 
 
 Denial of Contributory Negligence. 
 
 affected by his failure to arrive on the train, and by the report of his ejection 
 which would reach her by the other passengers. There being no allegation of 
 such anxiety and distress of mind on his part in the complaint, it was held to 
 be error to admit evidence to prove it.' 
 
 Impaired prospects of marriage, resulting from an injury to a female passenger, 
 must be specially alleged in order to constitute an element in the computation 
 of damages. 2 But damages for bodily pain suffered by reason of injuries 
 received in a railroad accident need not be specially alleged. They are general 
 damages implied by law.' And the peculiar state of the plaintiff's health at 
 the time of exposure in consequence of the defendant failing to carry according 
 to advertisement, may be proved in aggravation of damages without being 
 specially alleged.* And although there is no allegation of the nature and 
 ■extent of the plaintiff's business, evidence upon this point, and that on account 
 of the injury the plaintiff was incapacitated from attending to and conducting 
 that business, may be heard for the purpose of assisting the jury to determine 
 whether the plaintiff sustained an injury of no slight character, and that it was 
 followed by expense, suffering, and loss of time which had for him a pecuniary 
 value.* 
 
 § 13. WTiether the Plaintiff must deny Contributory Negligence. — There 
 is a difference of opinion among the courts as to whether the plaintiff in an ac- 
 tion for negligence is bound to deny that he was guilty of contributory negligence 
 on his part. It is held in several of the States, that in order to make out a primci 
 facie case the plaintiff must not only show negligence on the part of the defend- 
 ant, but he must also show that he was in the exercise of due care in respect to 
 the occurrence from which the injury arose. This is held in Massachusetts,* 
 
 * Indianapolis etc. R. Co. v. Milligan, 50 bie, supra; Adams v. Carlisle, 21 Pick. 146; 
 tnd. 392. Bigelow v. Rutland, 4 Cush. 247 ; Bosworth v. 
 
 » Hunter v. Stewart, 47 Me. 419. Swansey, 10 Mete. 363, 365; Parker v. Adams, 
 
 3 Curtiss V. Rochester etc. R. Co., 20 Barb. 12 Mete. 415, 417 ; Lucas v. New Bedford etc. 
 
 282 (affirmed in 18 N. Y. 534); Ohio etc. E. R. Co., 6 Gray, 64; Robinson v. Fitchburg 
 
 Co. v. Selby, 47 Ind. 471. etc. R. Co., 7 Gray, 92; Callahan v. Bean, 
 
 * Heirn v. McCaughan, 32 Miss. 17. 9 Allen, 401 ; Hickey v. Boston etc. R. Co., 14 
 6 Wade V. Leroy, 20 How. 34; Nebraska Allen, 429, 431; Gaynor v. Old Colony R. Co., 
 
 City V.Campbell, 2 Black, 590; Ballou v. Far- 100 Mass. 208; Murphy v. Deane, 101 Mass. 
 
 num, 11 Allen, 73. But see Ilolyoke v. Grand 455 ; Aliyn v. Boston etc. R. Co., 105 Mass. 77 ; 
 
 Trunk R. Co., 48 N. H. 541. Lane v. Atlantic Works, 107 Mass. 104. It i« 
 
 « The first case in Massachusetts which not necessary for the plaintiff to aver due 
 
 clearly decides that the burden of proof is care on his part in order to introduce proof 
 
 upon the plaintiff to show the absence of of it. May v. Princeton, 11 Mete. 442. In 
 
 contributory negligence on his part is Lane later cases it is held that the proof of due 
 
 V. Orombie, 12 Pick. 177. The court treats the care on the part of the plaintiff need not be 
 
 question as settled, and cites as authority direct, but the inference of such care may bo 
 
 Butterfleld v. Forrester, 11 East, 61 ; Harlow drawn from the absence of all appearance 
 
 V. Humlston, 6 Cow. 191; Smith v. Smith, 2 of fault, either positive or negative, on his 
 
 Pick. 621. These cases, however, go no fur- part, in the circumstances under which the 
 
 ther than to assert the doctrine that a plaintiff injury was received. Mayo t;. Boston etc. R. 
 
 cannot recover if his evidence shows he was Co., 104 Mass. 137; Prentiss v. Boston, 112 
 
 guilty of contributory negligence. Johnson Mass. 43; Hinckley v. Cape Cod B. Co., 120 
 
 V. Hudson River R. Co., 5 Duer, 21, 25. The Mass. 257, 262. 
 cases in Massachusetts follow Lane v. Crom-
 
 552 
 
 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 Maine,^ lovva,^ Illinois,^ Connecticut/ Mississippi, ^ Michigan," and Indiana.' 
 In Pennsylvania,** Missouri,' Wisconsin,"' Kentuclvy," Maryland,'-' Kansas, 
 Alabama,!* Minnesota, ^^ New Jersey,'^ and California," and in the federal 
 
 ' The law is clear and unquestioned that 
 the plaintiff must satisfy the jury, as an 
 affirmative fact, to be established by him as 
 a necessary part of his case, that at the time 
 of the accident he was in the exercise of 
 ordinary care. Gleason v. Bremen, 50 Me. 
 •222, 224; Buzzell v. Laconia Man. Co., 48 Me. 
 113. See also Dickey v. Maine Tel. Co., 46 
 Me. 483; Perkins v. Eastern etc. R. Co., 29 
 -Me. 307; Merrill v. Hampden, 26 Me. 234; 
 Kennard v. Burton, 25 Me. 39, 49. Although 
 the burden of proof of due care is upon the 
 plaintiff, yet it may be inferred from cir- 
 cumstances. French v. Brunswick, 21 Me. 
 29; Foster v. Dixfleld, 18 Me. 380. 
 
 - Rusch V. Davenport, 6 Iowa, 443; Rey- 
 nolds V. Hindman, 32 Iowa, 146, 148; Plaster 
 V. Illinois etc. R. Co., 35 Iowa, 449; Carlin v. 
 Chicago etc. R. Co.,37 Iowa, 316; Muldowney 
 V. Illinois etc. R. Co., 39 Iowa, 615; s. c. 36 
 Iowa, 462; 32 Iowa, 176; Patterson v. Bur- 
 lington etc. R. Co., 38 Iowa, 279; Way v. 
 Illinois etc. R. Co., 40 Iowa, IMI. While it 
 is the settled rule in Iowa that in an action 
 for injuries resulting from negligence the 
 burden of proof is upon the i)laintiff to 
 show that the injury occurred without want 
 of any reasonable care on his part, yet this 
 may be inferred from circumstances, with- 
 out being directly shown. Nelson v. Chicago 
 etc. R. Co., 38 Iowa, 564; Murphy v. Chicago 
 etc. R. Co., 45 Iowa, 661 ; s. c. 38 Iowa, 539. 
 
 3 Aui-ora Branch R. Co. v. Grimes, 13 111. 
 585; Dyer v. Talcott, 16 111. 300; Galena etc. 
 R. Co. V. Fay, 16 111. .558 ; Chicago v. Major, 
 18 111. 349; Galena etc. R. Co. v. Jacobs, 20 
 111. 478; Chicago etc. R. Co. v. Hazzard, 26 
 111. 373; Chicago etc. R. Co. v. Gregory, 58 
 111. 272; Kepperly v. Ramsdeu, 83 111. 354. 
 
 ■• Beers v. Housatonic R. Co., 19 Conn. 566; 
 Park V. O'Brien, 23 Conn. 339; Fox v. Glas- 
 tenbury, 29 Conn. 204. 
 
 '•> Vicksburg v. Hennessy, 54 Miss. 391. 
 
 f' Deti-oit etc. R. Co. v. Van Steiuburg, 17 
 Mich. 99, 119. 
 
 1 In an action for an injury caused by the 
 negligence of another, it must appear from 
 the complaint, either by express averment 
 or by a particular showing of the facts, that 
 the injury complained of occurred without 
 the fault or negligence of the plaintiff. 
 Evansville etc. R. Co. v. Dexter, 24 Ind. 411; 
 Evansville etc. R. Co. v. Hiatt, 17 111. 102, 105. 
 See also Mount Vernon v. Dusouohett, 2 Ind. 
 5S6; Wabash etc. Canal r. Mayer, 10 Ind. 400; 
 Indianapolis etc. R. Co. v. Keely's Admin- 
 
 istrator, 23 Ind. 133; Toledo etc. R. Co. r. 
 Bevin, 26 Ind. 443; Jeffersonville R. Co. r. 
 Hendricks, 26 Ind. 228; Pittsburgh etc. R. 
 Co. V. Vining's Administrator, 27 Ind. 513; 
 Michigan etc. R. Co. v. Lantz, 29 Ind. 528; 
 Jackson v. Indianapolis etc. R. Co., 47 Ind. 
 454; Riest v. Goshen, 42 Ind. 339. The plain- 
 tiff must show affirmatively that his fault or 
 negligence did not contribute to the injury. 
 Hathaway v. Toledo etc. R. Co., 46 Ind. 25, 
 30. The case of Wayne County Turnpike 
 Co. V. Berry, 5 Ind. 286, 288, seems to hold 
 that the plaintiff 's want of contributory 
 uegligence might be inferred from the cir- 
 cumstances. 
 
 8 Beatty v. Gilmore, 16 Pa. St. 463 ; Erie v. 
 Schwingle, 22 Pa. St. 384; Pennsylvania 
 Canal Co. v. Bentley, 66 Pa. St. 30 ; Bush v. 
 Johnson, 23 Pa. St. 209; Hays v. Gallagher, 
 72 Pa. St. 136 (explaining Waters v. Wing, 
 59 Pa. St. 211) ; Allen v. Willard, 57 Pa. St. 
 374 ; Mallory v. Griffey, 85 Pa. St. 275 ; Weiss 
 V. Pennsylvania R. Co., 79 Pa. St. 387; Penn- 
 sylvania R. Co. V. Weber, 76 Pa. St. 157; s. c. 
 72 Pa. St. 27. See Pennsylvania R. Co. v. 
 McTighe, 46 Pa. St. 316. 
 
 * Thompson v. North Missouri R. Co., 51 
 Mo. 190; Hicks v. Pacific R. Co., 65 Mo. 34; 
 s. c. 64 Mo. 430; Schuerman v. Missouri R. 
 Co., 3 Mo. App. 565. 
 
 10 Prideaux v. Mineral Point, 43 Wis. 513, 
 524; Hoyt v. Hudson, 41 Wis. 105; Achten- 
 hagen v. Watertown, 18 Wis. 331; Potter v. 
 Chicago etc. R. Co., 22 Wis. 615; s. c. 21 Wis. 
 372; Milwaukee etc. R. Co. v. Hunter, 11 
 Wis. 160. The above cases overrule the con- 
 trary doctrine held in Dressier v. Davis, 7 
 Wis. 527, and Chamberlain v. Milwaukee etc. 
 R. Co., 7 AVis. 425, 431. 
 
 " Paducah etc. R. Co. v. Hoehl, 12 Bush, 41 ; 
 Louisville etc. Canal Co. v. Murphy, 9 Bush, 
 522. 
 
 12 Freeh v. Phila. etc. R. Co., 39 Md. 574. 
 See Irwin v. Sprigg, 6 Gill, 200, 206; Balti- 
 more V. Marriott, 9 Md. 160. 
 
 13 Kansas etc. R. Co. v. Pointer, 14 Kan. 
 37; s. c. 9 Kan. 620. 
 
 » Smoot V. Wetumpka, 24 Ala. 112. 
 1" Hocum V. Weitherick, 22 Minn. 152. 
 
 16 New Jersey Express Co. v. Nichols, 32 
 N. J L. 166; s. c. 33 X. J. L. 434; Duraut r. 
 Palmer, 29 N. J. L. 544; Moore v. Central R. 
 Co., 24 N. J. L. 268. 
 
 17 Gay V. Winter, 34 Cal. 153, 164; Robinsson 
 V. Western Pacific R. Co., 48 Cal. 409, 426; 
 McQuiliken v. Central Pacific R. Co., 50 Cal. 7.
 
 CONTRIBUTORY NEGLIGENCE. 553^ 
 
 Whether Plaintiff must deny. 
 
 courts,! it is held that the negligence of the plaintiff contributing to the injury 
 complained of is a matter of defence, and that, ordinarily, the burden of proviug 
 it is on the defendant. In New York^ and several other States the decisions 
 are irreconcilable.^ 
 
 We apprehend that in actions by passengers against carriers the courts of 
 each State will in this respect follow the rule which they have adopted in other 
 actions for negligent injuries. In New York, where, as already seen, the authori- 
 ties are in conflict, it has been held that to entitle a person who has been injured 
 by an accident happening to a train of cars on which he was a passenger to 
 recover damages for the injury, he must establish affirmatively (1) that he wa* 
 guilty of no negligence which contributed to the injury; (2) that the defend- 
 ant was guilty of such negligence.* And the same rule obtains in Indiana.^ But 
 we apprehend that this is not the law. It is in conflict with the entire body of 
 decisions which hold that the failure of the carrier's means of transportation, 
 whereby an accident happens to passengers, is prima facie evidence of negligence 
 on his part. The rule in the cases which we have just quoted shifts the burden 
 from the carrier to the passenger. In Missouri^ it is not necessary to allege 
 that the plaintiff was, at the time of the injury, exercising due care, and not 
 guilty of contributory negligence. In Wisconsin it has been held necessary so to 
 allege,^ but the cases so holding have been overruled.^ In Indiana, where this 
 rule obtains, it is sufficient if it appears from the facts stated that the plaintiff 
 was without fault. Thus, where the plaintiff stated that the injury arose from a 
 broken rail, which the company had carelessly left unrepaired for a long time, 
 whereby the car in widch the plaintiff was being carried as a passenger was 
 thrown from the track, and the plaintiff thereby injured, etc., this was held a 
 good statement without an express averment that the plaintiff was without 
 fault.9 In Illinois, while it is not necessary to allege that the plaintiff was free 
 
 1 Railroad Co. v. Gladmon, 15 Wall. 401. Westfleld, 39 Vt.246; Moore v. Shreveport, S 
 
 2 It seems the plaiatifiF must prove the La. Au. 645; Walker v. Herron, 22 Texas, 55, 
 absence of contributory negligence on his 61 ; Little Miami K. Co. v. Stevens, 20 Ohio, 
 part. Warner v. New York etc. R. Co., 44 N. 415, 417. In Alabama, the plaintitf need not 
 Y. 465 (reversing s. c. 45 Barb. 299) ; Besiegel allege his freedom from fault, in his com- 
 V. New York etc. R. Co., 14 Abb. Pr. (N. 8.) plaint. Smoot v. Wetumi)ka, 24 Ala. 113. 
 29; Curran V. Warren etc. Man. Co., 36 N. Y. See also Dillon v. Union Pacific R. Co., 3 
 153; Suydam v. (irand Street etc. R. Co., 41 Dill. 319, 325. The plaintiff must show that 
 Barb. 375; De nencfletti r. Mauchiu, 1 Hilt. he used ordinary care. Beardsley v. Swan, 
 213; Burke v. Broadway etc. R. Co., 34 How. 4 McLean, 333; Hull v. Richmond, 2 Woodb. 
 Pr. 239; Holbrook v. Utica etc. R. Co., 12 N. & M. 337. 345. 
 
 Y. 236; 8. c. 16 Barb. 113; Spencer v. Utica < Deyo v. New York etc. R. Co., 34 N. Y. 
 
 etc. R. Co., 5 Barb. 3.37; Ryan v. Hudson etc. 9. See Button v. Hudson River K. Co., 18 N. 
 
 R. Co., 1 Jones & Sp. 137; Gillespie v. New- Y. 248. 
 
 burgh, 54 N. Y. 468, 471. But see Johnson v. '•> Jeffersonville R. Co. v. Hendricks, 26 
 
 Hudson River R. Co., 20 N. Y.65; s. c. 6 Duer, Ind. 228; Michigan etc. R. Co. v. L.antz, 29 
 
 633; 5 Duer, 21; Robin.son v. New York etc. Ind. 528. 
 
 Co., 65 Barb. 146 ; Hackford v. New York etc. " Llojd v. Hannibal etc. R. Co., 53 Mo. 509. 
 
 R. Co., 6 Lans. 381; s. c. 43 How. Pr. 222; ' Chamberlain v. Milwaukee etc. R. Co., 
 
 Squire ». Central Park etc. R. Co., 4 Jones & 7 Wis. 425; Dressier v. Davis, 7 Wis. 527. 
 
 Sp. 436, and Button v. Hudson River R. Co., « Milwaukee etc. R. Co. v. Hunter, 11 Wis. 
 
 18 N. Y. 248. 160, and cases previously cited. 
 
 i Lester v. Pittsford, 7 Vt. 1.58; Barber ». " Michigan etc. R. Co. v. Lantz, 29 Ind. 
 
 Essex, 27 Vt. 62 ; Hyde v. Jamaica, 27 Vt. 443 ; 528. 
 Hill V. New Haven, 37 Vt. 501; W.tlker v.
 
 554 
 
 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 from negligence, yet if tlie declaration shows that he was guilty of negligence, 
 and it does not appear from the averments that his negligence in comparison 
 with the defendant's was slight, while that of the latter was gross, it will not 
 sustain a judgment by default.^ 
 
 § 14. Particularity of Statement in the Defensive Pleadings. — The presump- 
 tion, where the accident happens in consequence of the breaking of the carrier's 
 means of transportation, being, as already seen,^ that the carrier was guilty of 
 negligence, he must, in a defensive pleading, allege facts which negative this 
 presumption. If, as is generally the case, his defence is that the injury was the 
 result of inevitable accident, he must state facts which, if true, show that the 
 accident was inevitable; obviously a statement of facts which are consistent 
 with negligence will be no defence.* Where the injury arose from a boiler 
 explosion, the averment of compliance with the Federal statute regulating the 
 use of steam on vessels carrying passengers will not, without more, constitute a 
 defence to the action. The answer must aver care and deny negligence ; for the 
 carrier may have complied with the statute and yet have been negligent.* 
 
 An answer that the passenger was, at the time of the accident, standing upon 
 the platform of the car contrary to the rules of the company, of which he had 
 notice, that it was dangerous to stand upon the platform while the train was in 
 motion, " wherefore he says that the injury sustained by the plaintiff was the 
 result of his own carelessness in being in an improper place," is bad, because it 
 does not allege as a matter of fact that the plaintiff was injured by reason of his 
 being upon the platform at the time of the accident. The conclusion of the 
 pleader that the injury was the result of the plaintiff 's own carelessness is not 
 equivalent to such an allegation of fact.* 
 
 § 15. Variance between Allegation and Proof. — Cases against carriers pre- 
 sent many illustrations of the familiar rule that in order to recover there must 
 be no substantial variance between the allegations and the proofs. The cases, 
 no doubt, bear out the rule stated by Cowekt, J., in Weed v. Saratoga, etc. Bail- 
 road Company,^ that where the action is in tort or on the custom, instead of on 
 the contract, formal variances will be disregarded at nisi prius, and on a motion 
 for a new trial the party will be allowed to amend. An objection to evidence on 
 account of variance must be taken when the evidence is offered ; it cannot be 
 taken advantage of on motion for a new trial nor in a court of error.^ If 
 it is not taken when the evidence is offered, the court may instruct the jury 
 upon the whole field of inquiry governed by it.^ 
 
 Proof that the wheel of a stage-coach ran off in consequence of the nut which 
 secures the wheel being unfit for that purpose, may be made under an allegation 
 that the coach was so carelessly provided, fitted out, etc., that it broke down.^ 
 
 1 Chicago etc. E. Co. v. Coss, 73 111. 394. ing Mosher v. Lawrence, 4 Denio, 421 ; Law- 
 « Ante. p. 209. rence v. Barker, 5 Wend. 305; Newberry v. 
 
 2 Burns v. Cork etc. R. Co., Irish Rep. 13 Lee, 3 Hill, 523; McMicken u. Brown, 6 Mart. 
 O. L. 543. (N. s.) 86; Goslin v. Corry, 7 Man. & G. 347; 
 
 * Curran v. Cheeseraan. 1 Cin. Superior Doe r. Benjamin, 9 Ad. & E. 644). 
 
 Ct. 52. 8 Boyce v. California Stage Co., 25 Cal. 
 
 6 Lafayette etc. R. Co. v. Sims, 27 Ind. 59. 460. 
 
 • 19 Wend. 534. « Ware v. Gay, 11 Pick. 106. 
 ' Roberts v. Graham, 6 Wall. 578, 581 (cit-
 
 VARIANCE. 
 
 555 
 
 Between Allegations and Proofs. 
 
 But under a declaration that the defendant " negligently drove, conducted, and 
 managed his coach," there can be no recovery if the negligence proved was in 
 sending out an insufficient coach. ^ So, where the allegation was that the injury 
 was produced by defective ties, a defective wheel, and the unskilfulness of the 
 company's servants, it was error to permit the plaintiff to introduce evidence 
 to show that the accident was caused by the high rate of speed of the defend- 
 ant's train. 2 An allegation that the passage-money was paid by the plaintiff is 
 sustained by proof that it was paid by the charterers of the ship, to whom the 
 plaintiff was clerk, and for whom he acted as supercargo on the voyage.' When 
 the carrier fails to transport the passenger according to the contract, passage- 
 money may be recovered under a count for money had and received, but not 
 for money lent and advanced, or for money paid, laid out, and expended.* So, 
 an allegation of the delivery of baggage to a cari'ier by the plaintiff is supported 
 by evidence of the delivery by an agent of the plaintiff.' Under a count setting 
 out a contract to transport the plaintiff in a particular vessel, the plaintiff cannot 
 recover damages for failing to transport him in any vessel, — the particular vessel 
 having been wrecked. He can only recover the passage-money which he paid, 
 with interest.® 
 
 Under a declaration which stated that the defendant contracted to carry the 
 plaintiff from London to Blackheath, evidence was given that the coach ran 
 from Charing Cross to Blackheath, that it was inscribed "London to Black- 
 heath," and that the plaintiff got on at the Elephant and Castle, that being 
 within what is commonly called London; and this was no variance.'' So, a 
 <leclaration that the plaintiff delivered a trunk to the defendant, to be put 
 into a coach at Chester in the county of Chester, was supported by evidence 
 that it was delivered in the city of Chester, which is a county of itself, separate 
 from the county of Chester at large, there being no evidence offered of the 
 existence of any other place called Chester.^ And where the complaint 
 charged the defendants as common carriers generally, without defining their 
 route, proof that they confined themselves to New York and Brooklyn was 
 held to create no variance.^ 
 
 Where two persons, A. and B., jointly undertook the management of a stage- 
 wagon, each with his own horses for a specified distance, and were jointly 
 interested in the profits, and an action was brought by a passenger against A. 
 only, for an injury which he had sustained while being transported by the ser- 
 vants of A. and B., an averment that the negligence was that of the driver of A. 
 was sustained by proof that the driver was actually employed by B. in conduct- 
 ing the wagon for his own stages.'" 
 
 In trespass on the case against a carrier, the principle applies that evidence 
 cannot be given of an act which amounts to an independent trespass, unless it is 
 counted upon in the declaration. Thus, where the counts were for a failure to 
 
 > Mayor v. Humphreys, 1 Car. & P. 251. • Brigj^s v. Vanderbilt, 19 Barb. 222. 
 
 * Toledo etc. R. Co. v. Beggs, 8.5 111. 80. ' Ditcham v. Chivis, 4 Bing. 706; «. c. 1 
 Compare Union Pacific U. Co. v. Hand, 7 Moo. & P. 735. 
 
 Kan. 380. * Woodward v. Booth, 7 Barn. & Cress. 301. 
 
 » Young V. Fevvson, 8 Car. & P. 55. • Richards v. Westcott, 2 Bosw. .589. 
 
 * Briggs V. Vanderbilt, l'.> I'.arb. 2.22. w> Waland r. Elkins, 1 Stark. 272. 
 » Richards v. Westcott, 2 I!<>sw. 590.
 
 556 EEMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 transport to his destination and forcibly bringing him back to the starting-point,. 
 and it appeared that the plaintiff had purchased a ticket with a counterfeit note, 
 and that the conductor had, as instructed, insisted on good money, and had 
 taken from him a hundred-dollar bill, giving it to the conductor of the returning 
 train on which the passenger went back, and that the latter conductor carried 
 the bill beyond the original starting-point, so that the plaintiff had to telegraph 
 for it, it was held that testimony as to the act of the second conductor in tem- 
 porarily detaining the bill was improperly admitted.' 
 
 Every thing is admissible under the general issue which shows that the carrier 
 was not guilty of any thing actionable in respect of the matters charged in the 
 declaration.^ 
 
 § 16. Points of Evidence. — (1.) Presumptions. — We have already seen that 
 a presumption of negligence arises against the carrier from an occurrence of 
 an accident through the failure of any of his means of transportation.^ A col- 
 lision between two boats in an open river where they are accustomed to pass,, 
 where there is room to pass, and where they ai-e in plain sight of each other, 
 is evidence of negligence which puts the burden on the defendant to show how 
 it happened.* So, proof of a collision on a railroad whereby a passenger is 
 injured is prima facie evidence of negligence, shifting the burden upon the com- 
 pany to excuse it.* There is no presumption that a conductor has authority to 
 permit a passenger to ride on the engine, and the onus is on such a person to 
 show such authority.* Every one riding upon a railroad car is presumed to be 
 lawfully there as a passenger, and the onus is upon the carrier to prove that such 
 a person is a trespasser.' Stopping a passenger-train at an unusual place ren- 
 ders the company presumptively wrong to that extent, and the onus is on them 
 to show that it was right.* Where a carrier defends an action for loss of bag- 
 gage on the ground that his liability as a carrier had ceased, and that he was 
 only liable as a warehouseman, the burden is on him to show that the goods 
 were stored in a safe and secure warehouse .» 
 
 (2.) Want of Skill in the Carrier^s Servant. — Where the want of skill in a stage- 
 driver is in issue, it must be proved in the same manner as character is in gen- 
 eral proved, — by general evidence as to his character for skill, and not by proof 
 of particular facts which go to show a want of skill. i" So, in an action for an 
 injury alleged to have been caused by unskilful driving of the carrier's ser- 
 vant, it has been held that evidence of similar negligent acts on his part at other 
 times was not admissible. '^ Nor is it competent to show negligence at other 
 
 > Memphis etc. R. Co. v. Chastine, 54 6 Jfew Orleans etc. R. Co. v. Allbrilton, 38 
 
 Miss. 503. Miss. 212. 
 
 2 Jerome v. Smith, 48 Vt. 230. « Robertson v. N. Y. etc. R. Co., 22 Barb. 91. 
 
 ' Ante, p. 209. See also Sherlock r. Ailing, " Pennsylvania R. Co. v. Books, 57 Pa. St. 
 
 44 Ind. 184; Lambeth v. North Carolina R. 339. 
 
 Co., 66 N. C. 494 ; Toledo etc. R. Co. v. Beggs, ' Memphis etc. R. Co v. Whitfield, 44 Miss. 
 
 85 111. 80; Teomans v. Contra Costa Steam 466. 
 
 Nav. Co., 44 Cal. 71; Chamberlain v. Milwau- ^ Bartholomew v. St. Louis etc. R. Co., 53 
 
 kee etc. R. Co., 7 Wis. 425 ; Pittsburgh etc. R. 111. 227. 
 
 Co. V. Pillow, 76 Pa. St. 510. i" Kinney v. Neil, 1 McLe.in, 540. 
 
 * Sherlock v. Ailing, 44 Ind. 184. " Maguire v. Middlesex R. Co., 115 Mass. 
 
 239.
 
 POINTS OF EVIDENCE. 557 
 
 Declarations — Conduct of other Passengers. 
 
 times by other agents of the company, — as, that conductors had been negligent 
 in calling out names of stations.' 
 
 (3.) Bes Gestae. — (a.) Declarations of the Plaintiff. — The representations made 
 by a sick or wounded man as to the nature, symptoms, and effects of the trouble 
 under which he is laboring at the time, are received as original evidence.- They 
 are of greater weight when made to a medical attendant, but they are not rejected 
 when made to any person.' A reasonable and just qualification of this rule is 
 that the statements must have been made under circumstances freeing them 
 from the suspicion of having been spoken with reference to future litigation, and 
 giving them the character of res gestce.* But a party will not be permitted to 
 prove what he himself stated to his physician, not in regard to the character and 
 manifestations of his malady, but in regard to its specific cause, when that is 
 one of the issues before the jury.* When the statements were made to the phy- 
 sician some weeks after the injury, it was held that the length of time which had 
 elapsed, though it would not warrant the rejection of the evidence, was a proper 
 <;ircumstance for the consideration of the jury.* 
 
 Declarations of the plaintiff made at the time of the accident, tending to 
 •explain its character, are admissible as part of the res gestae; and whether they 
 were real or feigned should be determined by the jury, from all the circum- 
 stances of the case.' Declarations of a passenger who was injured in a railway 
 accident while riding on the platform of a car, and the fact that he was injured 
 through his own fault, are admissible in evidence against him, though not con- 
 ■clusive.8 
 
 (6.) Conduct of the Other Passengers. — In an action for damages for injuries 
 received in a railway collision, where there is a question as to the negligence of 
 the plaintiff, evidence may be given of the conduct and exclamations of other 
 passengers, in order to show how the circumstances of danger impressed every 
 one, and to vindicate the plaintiff from the charge of rash conduct and impru- 
 dence from undue alarm. Such general conduct, given with the exclamations 
 involuntarily made by the passengers in consequence of the appearances of 
 imminent peril, may be regarded as a part of the res gestae for this purposes 
 Kemarks made by other passengers in rescuing the plaintiff from an attack of the 
 •carrier's servant are admissible as part of the res gestae.^" It is allowable to 
 prove in mitigation of damages, for the purpose of explaining the reason why a 
 brakeman was armed with a billet of wood, with which a passenger was struck, 
 that in that locality the train had been boarded with roughs and confidence-men, 
 ■who had attacked the brakeman." 
 
 » Southern R. Co. v. Kendrick,40 Miss. 374. ■• Illinois etc. R. Co. v. Sutton, 42 111. 438. 
 
 » Brown v. Hannibal etc. R. Co., 66 Mo. ^ Ibid. 
 
 588, 599. * Murphy v. New York etc. R. Co., 66 
 
 3 Perkins v. Concord R. Co., 44 N. H. 2'23 Barb. 12.5. 
 
 (citing 1 Greenl. on Ev., § 101 ; 1 Ph. on Ev. ' Frink v. Coe, 4 G. Greene, 555. 
 
 191; Aveson v. Kennaird, 6 East, 188; Bacon 8 Zemp v. Wilmington etc. R. Co., 9 Rich. 
 
 V. Charlton, 7 Cush. 581 ; Howe v. Plainfleld, L. 84. 
 
 41 X. H. 135). See also Matteson v. New York » Galena etc. R. Co. v. Fay, 16 IlL 658. 
 
 «tc. R. Co., 62 Barb. :m ; The State v. David- ><> Sherley v. Billings, 8 Bush, 147. 
 
 son, 30 Vt. 377; Caldwell v. Murphy, 11 N. Y. " Chicago etc. 11. Co. v. Boger, 1 Bradw. 
 
 416; Murphy v. New York etc. R. Co., 66 472. 
 Barb. 125.
 
 558 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 (c.) Conduct of the Defendant. — A plaintiff injured while on shipboard may 
 show that after the injury he applied to the master of the ship for some of his 
 men to remove him into a carriage, and that the master refused, saying that he 
 had enough for his men to do. Such evidence is material as a part of the trans- 
 action, and also upon the question of damages. ' 
 
 (d.) Statements of the Defendants Servants. — The rule as stated by Mr. Justice 
 Story is, that "where the acts of the agent will bind the principal, there his 
 representations, declarations, and admissions respecting the subject-matter 
 will also bind him, if made at the same time, and constituting parts of the 
 res gestae.'''' ^ "A close attention to this rule, which is of universal acceptance," 
 says Mr. Justice Strong, " will solve almost every diflQculty." ' The distinction 
 to be always kept in mind is between words spoken at the time of the transac- 
 tion, which may be treated as verbal acts of the agent, and words spoken after- 
 wards without the authority of his principal, which are merely in the nature of a 
 narrative of a past occurrence. An act done by an agent cannot be varied, qual- 
 ified, or explained, either by his declarations, which amount to no more than a 
 mere narrative of a past occurrence, or by an isolated conversation held or an 
 isolated act done at a later period.* "The reason," continues Mr. Justice 
 Strong, " is, the agent to do an act is not authorized to narrate what he had 
 done, or how he had done it, and his declaration is no part of the res gestae.'''' '" 
 Applying these doctrines, a conversation between the captain of a steamboat 
 and a passenger who had been injured in getting on his boat two days and a half 
 previously, in which the captain attributed it to the carelessness of the servants 
 of the boat, is not evidence against the owners of the boat, though the' captain 
 and boat were still on the voyage on which the injury occurred." In like man- 
 ner, in an action for loss of baggage, the admissions made by the conductor, 
 baggage-master, or station-master, in answer to inquiries made on behalf of the 
 passenger, the next morning after the loss, are no part of the res gestae, and 
 inadmissible.' So, where the plaintiff was injured by falling through an un- 
 covered bridge of the defendant in endeavoring to get upon one of the defend- 
 ant's trains, it was held that declarations of the conductor made after the acci- 
 dent, that the company had been guilty of negligence, were inadmissible.^ A 
 railway company can in no event be bound by the subsequent declarations of 
 one of its brakemen as to the cause of a disaster.* So, the subsequent declara- 
 tions of a stage-driver of the defendant — not the one who drove the particular 
 stage which upset — that the stage was top-heavy and overloaded, were not 
 admissible,!" though statements of the same import made at the time of the acci- 
 dent, by the driver in charge, were held competent." So, the declarations of a 
 
 'Hall V. Connecticut River Steamboat Ind. 335; Rathel r. Brady, 44 Ind. 412; Dick- 
 Co., 13 Conn. 319. inson v. Colter, 45 Ind. 445. 
 
 2 Story on Ag., § 134. ■■ Packet Co. v. Clough, supra. « Ibid. 
 
 3 Packet Co. v. Clough, 20 Wall. 528, 540. ' Morse v. Connecticut River R. Co., 6 
 ■• Taylor on Ev., § 541. See Stiles v. West- Gray, 450. 
 
 crn R. Co., 8 Mete. 44; Cooley t'. Norton, 4 * Chicago etc. R. Co. v. Fillmore, 57 111. 
 
 (;ush. 93 ; Corbin v. Adams, 6 Cush. 95 ; Tom- 265. 
 
 linson V. Collett, 3 Blackf. 436; Hynds v. » Michigan etc. R. Co. v. Carrow, 73 111. 
 
 Hays, 25 Ind. 31; Lafayette etc. R. Co. v. 348; Mich. etc. li. Co. t-. Gougar, 55 111. 503. 
 
 Khman, 30 Ind. 83; Bennett v. Holmes, 32 '" Rlaury r. Talm.ige,'2 .McLean, 157 
 
 Ind. 108; Bellefontaine It. Co. v. Hunter, 33 " Stokes r. Saltduslall, ante, p. 183.
 
 POINTS OF EVIDENCE. 559 
 
 Experts. 
 
 brakeman concerning the cause of the inflicting of an injury upon the passenger, 
 made on the same night of the injury, but afterwards, were not admissible. ^ 
 
 But this principle may not be of strict application where the agent making 
 the statements or admissions is the manager of the company, so that he may 
 be deemed for certain purposes its vice-principal, or even the company itself. 
 Thus, where a passenger, who had been assaulted and put off a street-car by its 
 conductor, went to the superintendent of the company to complain about it, 
 and the latter told him to "hush up," that he had directed the drivers to throw 
 him out of the cars for the reason that he did not pay, this declaration was 
 held competent evidence.'' But the soundness of this case cannot be conceded. 
 In Louisiana, the declarations of the superintendent of a railway company, made 
 in conversation with a witness after an accident in which the plaintiff, a passen- 
 ger, was injured, were held not admissible, because not binding upon the com- 
 pany ; the court saying that no one but a board of directors had power to make 
 admissions in regard to the controversy, which would bind the company, — that 
 no ordinary agent of the company would possess that power unless it had been 
 expressly delegated to him.^ Where the accident was caused by the giving way 
 of an embankment of a railway, and it became matei'ial to prove the condition 
 of the embankment, declarations made by the engineer who constructed it, at 
 the time when he constructed it, were held admissible.* 
 
 (4.) Testimony of Expert Witnesses. — It is not necessary that a physician 
 should be a graduate of a medical college, or have a license from some medical 
 board, in order to be qualified to testify as an expert in relation to the extent of 
 an injury which a passenger has received in a railway collision. One who with- 
 out these qualifications had attended a course of lectures, and studied the science 
 of medicine three years before he commenced to practice, was held competent.* 
 The proper mode of inquiry in examining an expert witness is to ask his 
 opinion upon a hypothetical state of facts such as appears from the evidence ; * 
 and the admission of the answer of a medical expert to a supposititious statement 
 which has been made to him, illustrative of the case on trial, affords no ground 
 of exception.' The rule being that the injured passenger is entitled to recover 
 damages for prospective suffering and loss occasioned by the injury,^ it is 
 obviously competent for him to prove by the testimony of medical expats how 
 long the injury which the accident inflicted on him will be likely to continue." 
 Where the inquiry is as to the extent and character of the injuries received by 
 the plaintiff, a physician may give his testimony as to the cause of the injury 
 with which, according to the testimony, the plaintiff is afllicted ; but he must 
 state the facts upon which his opinion is based.'" In an action for negligently 
 steering a ship, whereby it was wrecked and the plaintiff lost her passage, it 
 
 > Pittsburgh etc. R. Co. v. Theobold, 51 • Spear v. Richardson, 37 N. H. as. 
 
 Ind. 246. ' Perkins v. Concord K. Co. 44 N. H. 223. 
 
 2 Malecek v. Tower Grove etc. R. Co., 57 ^ Jnfra, § 19. 
 
 Mo. 17. * Taylor v. Grand Trunk R. Co., 48 N. H. 
 
 ^ Hill V. New Orleans etc. R. Co., 11 La. 304; Toledo etc. U. Co. v. Baddely, 54 111. 19;. 
 
 An. 292. Matleson v. New York etc. R. Co., 62 Barb. 
 
 * Brehm v. Great Western R. Co., 34 Barb. 364. 
 256. '" Ibid. See Jefferson Ins. Co. v. Cotheal> 
 
 5 New Orleans etc. R. Co. v. Allbritton, 88 7 Wend. 78; 1 Cow. & Hill's Notes, 761-763. 
 Miss. 242.
 
 560 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 was competent to call experienced nautical men and ask them whether, in their 
 judgment, particular facts which had been proved amounted to gross negli- 
 gence. ^ Evidence of a conductor as to whether guard-chains put on a railway 
 car would have prevented the accident was held not admissible, but its admis- 
 sion was, under the circumstances, no ground of error .^ An experienced railroad 
 man, who has made the management of cars, engines, etc., his business for 
 years, is as fairly an expert as one skilled in any other art, and his evidence is 
 ■entitled to stand on the same footing. But an explanation given by such a 
 witness as to the meaning of a notice that "Passengers must not stand on the 
 platform" is not admissible: the words stand for themselves.' 
 
 (5.) Opinions of Kon-Expert Witnesses. — There are many cases where the 
 opinions of non-expert witnesses are admissible as to questions which are not 
 matters of science. The driver of a stage-coach which broke down may state 
 whether the coach was safe and in good condition, and, if not, what were its 
 defects.* A witness who had ridden in a railway train with a party composed of 
 adults and children, during a portion of two days, was permitted to express his 
 opinion, formed from his observation of their demeanor, dress, conversation, and 
 general appearance, that they were of one family and of German nationality.^ 
 The opinion of a witness as to whether a certain place on a steamboat is mani- 
 festly, to the discernment of passengers of common understanding, an inappro- 
 priate place for passengers to be in, is not admissible.^ The opinion of a wit- 
 ness as to whether or not " the plaintiff would likely have received the injury he 
 did if his arm and elbow had been inside the car," is inadmissible.' An opinion 
 of a witness as to the length of time the passenger who was injured stood on the 
 platform has been held not admissible, if given as an opinion ; otherwise if he 
 stated it as a fact, from his presence there immediately before and immediately 
 after the collision.* An objection to the statement of a witness, taken in general 
 terms, will not be sufficient to save, on appeal, a question of its competency on the 
 ground that it was a statement of a matter of opinion ; the objection must be 
 specifically made.^ There is nothing in the question as to what caused a railway 
 train to run off the track on the concave side of the curve which calls for an 
 •explanation by an expert witness ; and a good architect and mechanic who has 
 ■examined the scene of the accident is not incompetent, by reason of not being 
 an expert raili'oad man, to give his opinion on that subject.'" 
 
 (6.) Other Matters. — Parol eAidence is admissible to show a rule of the 
 defendant, a railway company, that passengers are not to be upon the platform 
 while the train is in motion.'' Admitting useless and idle testimony — as, that it 
 was unsafe to drive six horses — is no ground for a new trial, unless it be 
 clearly shown that it misled the jury or might have done so.'- A stage proprie- 
 tor, defending an action brought by a passenger, may prove a general custom as 
 to the number of passengers carried in a stage of the same size as the one in 
 
 1 Malton V. Nesbit, 1 Car. & P. 70. ' Winters v. Hannibal etc. R. Co., 39 Mo. 
 
 2 BLxby V. Monti^elier etc. R. Co., 49 Vt. 468. 
 
 123. 8 Macon etc. R. Co. v. Johnson, 38 Ga. 409. 
 
 3 Macon etc. R. Co. v. Johnson, 38 Ga. 409. » Walker v. Erie R. Co., 63 Barb. 260. 
 
 < Frink r. Potter, IT 111. 406. i" Murphy v. \ew York etc. R. Co., 66 Barb. 
 
 6 Kansas Pacific R. Co. v. Miller, 2 Col. 442. 125. 
 
 6 Simmons r. Xew Bedford etc. Steamboat " Yonge v. Kinney, 28 Ga. 111. 
 
 Co., 97 Mass. 362. 12 Taylor v. Day, 16 Vt. 566.
 
 POINTS OF EVIDENCE. 561 
 
 Various Matters. 
 
 question, but he cannot prove that it was the custom on his own route to carry 
 that number; for he cannot make a custom, and then appeal to it in justification 
 of his own act.' Where the injury complained of was received in a railroad acci- 
 dent, it has been held incompetent to admit testimony as to the condition of the 
 road at a point a mile and a half distant from the accident, or that new ties were 
 subsequently put in in the neighborhood of the accident.^ But where the judge 
 who tried the case admitted evidence showing the general bad state of the 
 defendant's railway track for several miles distant from the place of the accident, 
 as one of the causes probably contributing to the accident, the Supreme Court 
 refused to set aside the verdict.' It has been held in New York that where the 
 condition of the ties near to where the cars ran off the track could not be ascer- 
 tained, it was competent to show the condition of those near to it; thus laying 
 the foundation for the inference that if the ties were damaged or decayed in the 
 Immediate vicinity of the accident, they would have been so at the place where 
 the cars ran off the track.* What evidence is sufficient to show that the defend- 
 ants were common carriers at the time of the accident, and had undertaken to 
 transport the plaintiff over their route, has been ruled at some length in a Ver- 
 mont case.5 There is no objection to the plaintiff exposing the injured limb to 
 the surgeon called upon to describe the injury before the jury.^ Where the 
 action was for an injury received by a passenger while riding on the defendant's 
 train, by a collision with another train, evidence of the habits of the conductor 
 of the other train was held competent. If he was addicted to intoxication, 
 this would raise a presumption of negligence.' Where the claim of the plain- 
 tiff is that the injury occurred in consequence of the train not stopping a suffi- 
 cient time at the station, it is competent for the plaintiff to show the usual and 
 customary period of stopping at that place.* To corroborate the testimony of 
 the conductor as to the time of the arrival of his train at a station, it is com- 
 petent to show that he made a contemporaneous memorandum, in compli- 
 ance with a regulation requiring it ; and the time-table regulating the running, 
 stoppages, etc., of such train may be proved.' So may regulations of the cor- 
 poration and the custom of its agents in respect of their giving notice to pas- 
 sengers of the necessity of their changing cars in order to reach a given station.'" 
 Where the question was as to the character of a stream, a railway bridge over 
 which had been destroyed by a flood, and whether the railway company was not 
 negligent in not foreseeing and providing against such an accident, it was held 
 that evidence of floods subsequent to that which caused the injury was improp- 
 erly received." Wliere a railway company was sued for the act of its conductor 
 in expelling the plaintiff from one of its trains, a witness was allowed to give a 
 
 ' Maury v. Talmadge, 2 McLean, 157.' ' Pennsylvania R. Co. v. Books, 67 Pa. St. 
 
 2 Reed V. New York etc. R. Co., 45 N. y. :«9. On the question whether intoxication 
 
 574. i^i evidence of negligence, sec 1 Thomp. on 
 
 ■' Holyoke v. Grand Trunk R. Co., 48 N. H. Neg , pp. 388, 430; 2 id. 1174, 1203. 
 
 541. " Fuller v. Naugatuck R. Co., 21 Conn. 
 
 * Murphy v. New York etc. R. Co., 6« l?aib. r>ri'. 
 
 125. ^ Barker v. New York etc. R. Co., 24 N. Y. 
 
 * Bixby V. Montpelier etc. R. Co., 4;> Vt. ."iOn. 
 
 123. '" Ibid. 
 
 6 Mulhado v. Brooklyn City R. Co., 30 N. " Kansas Pacific R. Co. v. Miller, 2 Col. 442. 
 
 Y. 370. 
 
 36
 
 562 REMEDIES, PROCEDURE, AN© DAMAGES. 
 
 Notes. 
 
 conversation -which he heard behind him on the train, supposed to be between 
 the conductor and the plaintiff, leaving other witnesses to identify the persons 
 between whom it took place.* 
 
 § 17. Province of Court and Jury.' — Whether the carrier or his servant 
 has been negligent, or whether the passenger was guilty of negligence con- 
 tributing to the injury on the other hand, will generally be a question for the 
 jury,' though in the view of some courts it is a question for the court where 
 there is no conflict as to the evidence.* In Maryland it is held that where the 
 injury arose from a known violation of the rules of the carrier by the passenger, 
 the question of negligence is a question for the court ; and in such a case there 
 can be no recovery.* The judge may decide the case by peremptory instructions, 
 or by directing a nonsuit, according to the practice of the court, where, assuming 
 all the evidence which works in favor of the plaintiff to be true, no fair-minded 
 man could draw from such evidence the inference that the defendant has been 
 guilty of a want of that degree of care which he was bound to exercise under 
 the circumstances. More broadly, he so decides where there has been no faUure 
 of duty on the part of the defendant, — as, where the accident arose from some- 
 thing which the carrier was not bound to anticipate or guard against.^ But the 
 case must go to the jury — 
 
 1. Where facts which, if true, would constitute "evidence of negligence'* 
 are controverted.' To illustrate : In Maryland, if it appear that the plaintiff was 
 injured in consequence of having voluntarily put his arm out of the window 
 of a railway coach, he cannot recover. Yet if there is a conflict of testimony 
 as to how his arm came to be thus exposed, the case must go to the jury.^ 
 
 2. Where, although the facts are not controverted, fair-minded men might 
 differ as to whether the inference of negligence should be drawn from them ; ' In 
 other words, where the facts do not amount to what the books term "evidence 
 
 » Indianapolis etc. R. Co. v. Anthony, 43 Park R. Co., 7 Robt. 616; Biles v. Holmes, 11 
 
 Ind. 183. Ired. L. 16; Dascomb v. Buffalo etc. R. Co., 
 
 s This question, in its relation to the gen- 27 Barb. 221; Dublin etc. R. Co. v. Slattery, 
 
 eral law of negligence, is considered more 3 App. Cas. 1155, 1201, per Lord Blackburn, 
 
 at length in 2 Thomp. on Neg., pp. 1235-1240. ^ Baltimore R. Co. v. Wilkinson, 30 Md. 
 
 3 Allender v. Chicago etc. R. Co., 37 Iowa, 224, 232. 
 
 264 ; Zemp v. Wilmington etc. R. Co., 9 Rich. * Daniel v. Metropolitan R. Co., L. R. 6 H. 
 
 L. 84; Memphis etc. R. Co. v. Whitfield, 44 L. 45. 
 
 Miss. 467; Crissey v. Hestonville R. Co., 75 ' Saltonstall v. Stockton, 1 Taney's Dec. 
 
 Pa. St. 83; Sullivan v. Phila. etc. R. Co., 30 11; Pittsburgh etc. R. Co. v. Andrews, 39 Md. 
 
 Pa. St. 234; Thatcher v. Great Western R. 329; Chicago City R. Co. v. Young, 62 lU. 238; 
 
 Co., 4 Upper Canada C. P. 543 ; Simmons v. Bernhardt v. Rensselaer etc. R. Co., 32 Barb. 
 
 Xew Bedford etc. Steamboat Co., 97 Mass, 166. 
 
 361; Brehmv. Great Western R. Co., 34 Barb. s Pittsburgh etc. R. Co. v. Andrews, 39 
 
 256. Md. 329. 
 
 < Halpin v. Third Avenue R. Co., 8 Jones » Gaynor v. Old Colony etc. R. Co., 100 
 
 & Sp. 175. See also Gagg v. Vetter, 41 Ind. 228, Mass. 208 ; Paterson v. Wallace, 1 Macq. H. L. 
 
 254; Louisville etc. R. Co. v. Mui-phy, 9 Bush, Cas. 748; Johnson v. Hudson etc. R. Co., 20 
 
 .r22; Costello v. Landwehr, 28 Wis. 522, 629; N. Y. 65; Phila. etc. R. Co. v. Spearen, 47 Pa. 
 
 Grigsby V. Chappel, 5Kich. L. 446; Pittsburgh St. 300; Mangam v. Brooklyn etc. R. Co., 33 
 
 etc. K. Co. V. Evans, 53 Pa. St. 250; Flemming N. Y. 455; West Chester etc. R. Co. v. M^El- 
 
 r. Western Pacific R. Co., 49 Cal. 253; Van wee, 67 Pa. St. 311; Seabrook v. Hecker, 2 
 
 Lien V. Scoville Man. Co., 4 Daly, 554; Foot Robt. 291 ; Haycroft v. Lake Shore etc. R. Co., 
 
 r. Wiswall, 14 Johns. 304; Thrings v. Central 64 N. Y. 636
 
 PROVINCE OF COURT AND JURY. 563 
 
 Demurrer to Evidence. 
 
 of negligence." And where the court directs a verdict for the defendant, the 
 plaintiff is entitled to have every thing on which his right to recover depends, 
 and which the proof tended to establish, regarded as proved. i 
 
 3. Where, at the same time, the facts are in dispute, and the inferences which 
 fair-minded men would draw from them are doubtful.^ More briefly, the ques- 
 tion of negligence is said to be for the jury when there is a substantial doubt as 
 to the facts, or as to the inferences to be drawn from them ; ^ and it is for the 
 court only where the facts are undisputed and the inference of negligence is 
 clear.* The foregoing doctrines apply in favor of the plaintiff as well as in 
 ■favor of the defendant; so that where the court can see from the undisputed 
 evidence that the defendant was guilty of negligence, it will set aside a verdict 
 for the defendant and award a venire de novo.^ 
 
 The following matters have been held questions for the jury: Whether a rail- 
 way company has been guilty of negligence in not ascertaining the utility of the 
 latest improvements which have been devised for the protection of passengers, 
 and in not adopting them.^ Whether the act which occasioned the injury was 
 wilful and malicious, in such a sense as to be beyond the scope of the servant's 
 authority, or whether it was mistakenly conceived to be a necessary use of force 
 to effect a removal of a passenger from the train.' Whether a passenger injured 
 while standing on the platform knew that it was a prohibited place, and, if so, 
 whether under the circumstances his act so contributed to the injury as to 
 exonerate the company .^ As already seen, a presumption of negligence arises 
 against the carrier from the happening of the accident to the passenger from a 
 failure, during the transit, of some of the carrier's means of transportation.* 
 Whether the circumstances exist which repel this pi'esumption is a question of 
 fact for the jury, to be determined from all the evidence in the case.'" 
 
 § 18. Demurrer to Evidence. — A demurrer by one party to the evidence 
 admits every thing which the evidence tends to prove in favor of the other party : 
 and the reason is that the judge is not permitted either to deterraiue contro- 
 verted facts, or to say what inferences of fact shall be drawn from the facts 
 proved. Its sole object is so to present the case to the judge that he shall deter- 
 
 1 Stone V. Chicago etc. R. Co., 47 Iowa, 82; » Crissey v. Hestonville etc. R. Co., 75 Pa. 
 s. c. 10 Ch. Leg. N. 78; 6 Reporter, 489; Mc- St. 83; Barton v. St. Louis etc. R. Co., 52 Mo. 
 Clenaghan v. Brock, 5 Rich. L. 17. 253. 
 
 2 Nichols V. Sixth Avenue R. Co., 38 N. * Dickens v. New York etc. R. Co., 1 Abb. 
 Y. 131. See also Railroad Co. v. Stout, 17 App. Dec. 504. 
 
 Wall. 657; Fernandez v. Sacramento City R. • Derwort v. Loomer, 21 Conn. 245; s. c. 1 
 
 Co., 4 Cent. L. J. 82; Detroit etc. R. Co. v. Am. L.Reg. 479. 
 
 Van Steinburg, 17 Mich. 99; The State v. '• liegeman v. Western R. Co., 13 N. Y. 9, 
 
 Railroad Co., 52 N. H. 529 ; Gaynor v. Old Col- ante, p. KiO. 
 
 ony etc. R. Co., 100 Mass. 208, 212 ; McGrath v • Jackson v. Second Avenue R. Co., 47 N. 
 
 Hudson River R. Co., 32 Barb. 144; s. c. 19 Y. 274. 
 
 How. Pr. 211; Bridges v. North London R. *< Zerap v. Wilmington etc. R. Co., 9 Rich. 
 
 Co., L. R. 7 H. L. 213; Beers v. Housatonic L. 84. 
 
 R. Co., 19 Conn. .'500; Vinton v. Schwab, 32 " Ante, p. 209. 
 
 Vt. 612; Pennsylvania Canal Co. v. Bentley, '« Sullivan v. Philadelphia R. Co., 30 Pii. 
 
 66 Pa. St. 30, 34; Wyatt v. Citizens' R. Co., 55 St. 234; Brehm v. Great Western R. Co., 34 
 
 Mo. 485; Norton v. Ittner, 56 Mo. 351; Stod- Barb. 256. 
 
 dard v. St. Louis etc;. K. Co., 65 Mo. 514; 
 
 Jenkins v. Little Miami R. Co., 2 Disney, 49.
 
 564 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 mine what inferences of law shall be drawn from the facts which the evidence 
 tends to prove. It is therefore in the nature of a demurrer to a pleading, which 
 admits all the facts which are well pleaded to be true ; or to a special verdict, 
 where, the jury having found the facts, the judge announces what conclusions of 
 law shall be drawn therefrom. It is never safe, therefore, to demur to the evi- 
 dence where there is any evidence tending to prove negligence; for then the 
 judge will accept this evidence as true, and from it determine that there was neg- 
 ligence as a conclusion of law.^ On overruling demurrer to the evidence, the judge 
 cannot enter up a judgment, but must dii-ect an inquiry of damages by a jury.^ 
 
 § 19. All Damages, present and prospective, maybe recovered. — An action 
 for injuries to the person of a passenger may be brought at any time after the 
 injuries occur, within the time fixed by the statute of limitations, and but one 
 action can be brought therefor.^* Such an action is unlike that for a continuing 
 nuisance,* or for enticing a servant away where the servant was apprenticed for 
 a term of years,^ or for enticing a wife away,« or for the continuation of false 
 imprisonment after action brought,^ or for trespass upon land.* In the case of 
 actions for injuries to the person, the cause of action is founded on the wrong 
 and damage combined, and a new action cannot be brought simply because new 
 damage ensues without new wrong ; while in the other cases mentioned, as in 
 the case of false imprisonment after action brought, a new action may be 
 brought for all damage which is sustained subsequent to the bringing of the 
 former suit. "Where successive actions may be brought for a continuous 
 wrong, as in the case of a trespass upon land, the damages in each suit are very 
 properly limited to those sustained by the plaintiff at its commencement ; but 
 for an injury to the person, resulting from a single act, a single action only can 
 be brought, and it therefore would be manifestly unjust not to take into consid- 
 eration, upon the trial, the nature and extent of the injury in all its consequences ; 
 since by not so doing, the plaintiff, in many cases, would be deprived of the 
 larger portion of the compensation he might justly claim, and the damages given 
 be wholly disproportioned to the injury sustained.'" Therefore the plaintiff 
 in an action for an injury to his person as a passenger may recover not only the 
 damage he has sustained up to the time of bringing the suit, but also all pros- 
 pective damages which the evidence renders it reasonably certain must neces- 
 sarily result from the injury. i" And it follows that where the evidence shows 
 
 1 As to the practice under a demurrer to ^ Whitney v. Clarendon, 18 Vt. 252; Ward 
 
 the evidence, see Wright v. Pindar, Style, v. Rich, 1 Vent. 103. 
 
 34; Copeland v. New England Ins. Co., 23 ^ Whitney v. Clarendon, 18 Vt. 252; Bras- 
 Pick. 138; Young v. Black, 7 Cranch, 568; field r. Lee, 1 L. Raym. 329. 
 Fowle V. Alexandria, 11 Wheat. 322 ; Mobile « Caldwell v. Murphy, 1 Duer, 233, 240. 
 etc. R. Co. V. McArthur, 43 Miss. 180 ; Fent v. » Ibid. 
 
 Toledo etc. R. Co., 1 Thomp. on Neg., p. 136; lo Klein v. Jewett, 26 N. J. Eq. 474; Mem- 
 
 s. c. 59 111. 349. phis etc. R. Co. v. Whitfield, 44 Miss. 466 ; 
 
 - Mobile etc. R. Co. v. McArthur, 43 Miss. Curtiss v. Rochester etc. R. Co., 20 Barb. 
 
 180. 282 (affirmed, 18 N. Y. .534) ; Caldwell v. Urn- 
 
 3 Curtiss r. Rochester etc. R. Co., 20 Barb. phy, 1 Duer, 233 (affirmed, 11 N. Y. 416); 
 
 282, 292 (affirmed in 18 N. Y. 534). Matteson v. New York etc. R. Co., 62 Barb. 
 
 * Hopkins V. Atlantic etc. R. Co., 36N. H.9. 364; Holyoke v. Grand Trunk R. Co., 48 N. 
 
 5 "WTiitney v. Clarendon, 18 Vt. 252; Ham- H. 541 ; Black v. CaiToUton R. Co., 10 La. An. 
 
 bleton V. Veere, 2 Saund. 169. 33; Frink v. Schroyer, 18 111. 416.
 
 DAMAGES. 5(;5 
 
 Should not be conjectural. 
 
 that injuries continued to exist up to the time of the trial, the testimony of a 
 physician as to the plaintiff's condition four months after the injury occurred,' 
 and even after the suit was instituted, is admissible ;* and the plaintiff may 
 amend his declaration after suit brought, so as to increase the amount of dam- 
 ages claimed.* 
 
 § 20. Permanent Injuries — Life-Tables. — It is also competent for the plain- 
 tiff to show that the injuries complained of are permanent in their nature, — that 
 he will probably not recover from their effects ; * and when there is such testi- 
 mony, it is not improper to introduce in evidence standard life-tables to show 
 the expectancy of life of one of the age of the injured party, as a basis upon 
 which to estimate the amount of damages he should recover.* 
 
 § 21. Damages should be obvious, and not conjectural or speculative.^ — 
 The damages allowed should be such as result directly from the injury sus- 
 tained.' Thus, it is said: "Damages produced by other agencies than those 
 causing the injury, or even by agencies remotely connected with those causing 
 the injury, cannot be awarded as proximate or proper compensation, but only 
 where the injury flows from the wrongful act as its natural concomitant, or as the 
 direct result thereof. Where speculation or conjecture has to be resorted to 
 for the purpose of determining whether the injury results from the wrongful act 
 or from some other cause, then the rule of law excludes the allowance of dam- 
 ages for such injury." 8 Thus, in the case from which we have just quoted, 
 it appeared that where a train failed to stop at a station where a passenger was 
 waiting for it, to be transported to another station, and he, instead of hiring an- 
 other conveyance or waiting till the next train came, walked to his place of 
 destination, in very cold weather, and on account of the exposure became sick, 
 it was held that his sickness and the loss to him thereby occasioned were not 
 elements of the damages he could recover ; that if his business required it, he 
 might have hired another conveyance, and the company would have been liable 
 for such actual damages as he could prove in the way of necessarily increased 
 expenses either in waiting or procuring another vehicle, and such loss to his 
 business as he might suffer on account of the delay, but he had no right to inflict 
 injury on himself to enhance the amount of his damages.* 
 
 1 Dale V. Brooklyn etc. R. Co., 1 Hun, 146; the witnesses." Pollock, C. B., in Wilson v. 
 s. c. 3 Thomp. & C. 686. NewiJort Dock Co., 4 Hurl. & Colt. 2:52 ; s. c. L. 
 
 2 Hopkins v. Atlantic etc. R. Co., 36 N. H. R. 1 Excli. 177 ; 12 Jur. (n. s.) 233. See also 
 9. Blackburn, J., in Ilobbs v. London etc. R. 
 
 "McDonald v. Chicago etc. R. Co., 26 Co., 44 L. J. (Q. B.) 49,53; s. c. L. R. 10 Q. B. 
 
 Iowa, 124. Ill; 23 Week. Rep. 520; 32 I,. T. (N. 8.) 352. 
 
 ■i Matteson v. New York etc. R. Co., 62 "The right to damages is a question of law 
 
 Barb. 384; Pittsburgh etc. R. Co. D.Andrews, for the court. The facts are for the jury." 
 
 39 Md. 329. Tarbell, J., in Memphis etc. R. Co. v. Whit- 
 
 6 McDonald v. Chicago etc. R. Co., 26 field, 44 Miss. 466, 499. 
 
 Iowa, 124; The D. S. Gregory, 2 Ben. 226 ' Baltimore etc. R. Co. v. Blocher, 27 Md. 
 
 (affirmed in 9 Wall. 513). 277; Montgomery etc. R. Co. v. Boring, 51 
 
 ^ " We apprehend, when the facts are Ga. 582. 
 
 known, it is the province of the court to say * Indianapolis etc. R. Co. v. Birney, 71 111. 
 
 for what matters damages are to be given; 391. 
 
 but the amount of damages is a question for » Indianapolis etc. R. Co. v. Birney, 71 111. 
 
 the jury quite as much as the credit due to 391.
 
 5(56 REMEDIES), PKOCEDUKK, AND DAMAGES. 
 
 Notes. 
 
 In another case, the defendant, a common carrier of passengers, contracted to 
 take the plaintiff, a young lady, from a railroad depot to her home, but, before 
 arriving there, set her down in the city, a mile from her residence, on the side- 
 walk of a frequented street on which ran a line of street cars which passed 
 within a square of her house. It was on a dry but very cold winter day. The 
 plaintiff was of a delicate constitution, though not sick at the time. Being 
 warmly clad, she walked home in company with a friend, but in doing so con- 
 tracted a cold which permanently injured her health. It was held that the injury 
 was too remote, and the contributory negligence of the plaintiff too direct, to 
 warrant a recovery for her sufferings, loss of emplojonent, and permanent injury 
 to health; that her recovery must be limited to the reasonable cost of a convey- 
 ance home, and her expenses In endeavoring to avoid exposure to the cold.' 
 
 In a recent English case,'^ the rule seems to have been applied with unnecessary 
 ri«'or. The evidence showed that, through the negligence of the servants of the 
 defendant, a railway company, the plaintiffs (husband and wife) and their two 
 children were taken to the wrong station, where they could obtain neither 
 accommodation nor a conveyance; consequently they were obliged to walk 
 several miles, in the middle of a wet night. The female plaintiff caught cold 
 and was sick for some time, and unable to assist her husband in his business. 
 The sickness made medical attendance and other expenses necessary. The 
 plaintiffs recovered £10 for the personal inconvenience suffered under these 
 circumstances, and £20 in respect of the wife's illness. On appeal, it was held 
 that the plaintiffs could not recover damages for the illness of the wife or the 
 losses in consequence, such damage being too remote, and not flowing imme- 
 diately from the cause of action. Cockburx, C. J., thus expressed the difficulty he 
 had in coming to a decision and laying down a rule as to the measure of damages 
 in actions of this kind : " The nearest approach to a definition, it seems to me, is, 
 that to entitle a person to damages for a breach of contract the injury for 
 which compensation is asked should be one that may be taken to have been in 
 the contemplation of the parties as fairly the consequence that might arise from 
 the breach, or as fairly flowing from it, and not merely connected through a 
 series of intermediate causes between the breach and the injury complained 
 of." Mellor, J., in the same case, stated the rule thus: "The damage which, 
 as a matter of law, must be construed as a measure of damages is such as arises 
 naturally and directly from the breach of contract, or such as both parties might 
 reasonably have expected to result from a breach of the contract." Cockburn, 
 C. J., also said: "As to walking home, it must be in the contemplation of the 
 parties that passengers put down at a wrong place will have to get home. If 
 there are means of doing so they must avail themselves of them, and the com- 
 pany are responsible for the cost incurred; if there are no such means, the 
 company are responsible, and must compensate for the inconvenience which the 
 absence of means causes. But in the case of the cold caught, that cannot stand 
 on the same footing." He then gives the two following hypothetical cases, 
 which he claimed to be analogous to the case at bar: "The party aggrieved 
 would in like manner be entitled to recover as where in walking home in the 
 
 1 Francis v. St. Louis Transfer Co., 5 Mo. - Hobbs v. London etc. R. Co., 44 L. J. (Q. 
 
 App. 7. B.) 49 ; s. c. 23 Week. Rep. 520 ; 32 L. T. (Jf. 8.) 
 
 352; L. R. 10 Q. B. IIL
 
 DAMAGES. 567 
 
 Should not be conjectural. 
 
 ■dark a false step is taken which results in a fall and a broken limb. In that 
 case the damage would be too remote, not being a consequence which could 
 reasonably be anticipated to follow from a breach of contract, as a person might 
 walk many times from Esher to Hampton without such an occurrence. Or, 
 again, persons are entitled under such circumstances to take a carriage ; suppose 
 that done, and the carriage to be overturned and the person to sustain a bodily 
 injury, it may be said that if this person had been put down at the right place 
 he would not have had to walk or ride, and so could have met with neither 
 accident; but still the injury is too remote. That, I think, is the case here; it 
 is not the necessary, not even the probable, consequence of this breach of contract 
 that personal injury should be sustained or a cold caught. That cannot be 
 reasonably expected, and so to have been within the contemplation of the 
 parties; in other words, too remote." The foregoing language would seem to 
 be open to criticism. It may be true that the taking of a false step resulting 
 in a broken limb, or a bodily injury from the overturning of a carriage in 
 attempting to reach his destination, are not consequences which could reason- 
 al)ly be anticipated to follow from setting a passenger down at the wrong 
 station; but that a female passenger might become sick, when compelled to 
 walk several miles on a wet night, is a consequence reasonably to be antici- 
 pated to follow sugh a breach of the contract of carriage as in this case, and is 
 such as may be taken to have been in the contemplation of the parties as fairly 
 flowing from it.i 
 
 It must be considered as in the contemplation of the parties that if, in the 
 breach of the contract of carriage, the passenger is placed in such a position 
 that his health is endangered, either by reason of the nature of the exposure, 
 or on account of his feebleness of body, his age, or his being unacclimated, 
 sickness will probably ensue, causing damage to him. Thus, the defendant, a 
 common carrier of passengers, contracted to carry the plaintiff from New York 
 City to San Francisco by way of Nicaragua, but in consequence of the wrecking 
 of the vessel which was to carry him from San Juan del Sur, on the Pacific 
 coast, to San Francisco, he was detained for several weeks upon the Isthmus of 
 Nicaragua, where he became sick with a fever peculiar to that climate and 
 remained sick until long after his arrival in New York City, to which place he 
 was obliged to return. Under these circumstances, it was held proper to receive 
 evidence as to exposure to sun and rain while crossing the isthmus, and the 
 unhealthiness of the climate; furthermore, that damages should be allowed for 
 loss of time by reason of detention on the isthmus, for his expenses there and the 
 expenses of his return to New York, the time he lost by reason of his sickness after 
 1k! returned home, and the expense of such sickness.^ Again, where an aged 
 woman was put off in the night-time, at a station upon the defendant's road 
 which was neither open nor lighted and where there was no one to give her 
 information as to where she might obtain shelter, and she wandered away from 
 the depot in search of the highway, and returning, about an hour afterwards, 
 fell down a flight of steps on the premises, it was held — it being assumed 
 that the absence of any light at the depot, or of any person to give information, 
 
 I Compare Patten v. Chicago etc. R. Co., ruling Brlggs v. Vanderbilt, 19 Barb. 222, and 
 32 Wis. .524. Bonsteel v. Vanderbilt, 21 Barb. 26). Sae 
 
 SV illiams v. Vanderbilt, 2S N. Y. 217 (over- also Ward v. Vanderbilt, 34 How. Pr. 144.
 
 568 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 was negligence on the part of the company — that it was proper to submit the 
 question to the jury whether such negligence was the proximate cause of the 
 injury. ' 
 
 The refusal of the carrier to receive a passenger,^ carrying him beyond hi* 
 destination,^ detaining him unnecessarily during his journey,* or carrying off a 
 person against his will who is legitimately upon a vessel,^ are all wrongs which 
 may be redressed by actions for damages thereby sustained. Damages, it seems, 
 may be awarded for the refusal of the carrier to further transport a passenger 
 after it has come to his knowledge that any other course would result in loss 
 of life of the passenger or be hazardous to his safety. The novel case of 
 Pearson v. Duane,^ which we have elsewhere presented in full,' illustrates this 
 point. The plaintiff was here persisting in a course of " sheer madness," as the 
 court teriiied it, which was checked by the refusal of the defendant to convey 
 him further. It was held, nevertheless, that in such a case the apprehended dan- 
 ger only mitigated the act ; that the passenger was entitled to compensation for 
 the injury done him by being put ou board the return vessel, so far as that 
 injury arose from the act of the captain in putting him there; but that he was 
 not entitled to damages for injuries he suffered from obstructions which he 
 afterwards met with in reaching San Francisco, which injuries were not caused 
 by the captain's act, but were due to the fact that all to whom he afterwards 
 applied for passage to that place knew the power and determination of the 
 authorities there and were afraid to carry him back. The court below having 
 awarded $4,000 damages, this judgment was modified by allowing but $50, with 
 directions that each party should pay his own costs on the appeal. 
 
 In an English case,^ it appeared that the plaintiff, a person in business, travel- 
 ling to meet his customers, booked himself by the defendants' railway as a 
 passenger from London to Hull by a train which the defendants advertised to 
 arrive at Hull the same night. On reaching Grimsby, where the defendants' 
 line ended, it was found that the Hull train had left, and although the plaintiff 
 might have reached Hull that night by taking a special conveyance, he remained 
 at Grimsby and proceeded by train the next morning; but he was too late to 
 reach certain places by the hour he had previously appointed for meeting his 
 customers, and in consequence he was obliged to hire conveyances to see some 
 of his customers elsewhere, and was detained several days waiting for the mar- 
 ket-days to see others. It was held that he was only entitled to recover 
 damages to the amount of his hotel expenses at Grimsby and the railway fare 
 the next day to Hull, and was not entitled to recover for any damages whatever 
 occasioned by his not reaching the places where he had engagements to see his 
 customers, by the time he might have reached them if the defendants had per- 
 formed their contract. 
 
 Evidence of loss sustained by the plaintiff in his business in consequence of a 
 personal injury is proper, to aid the jury in estimating the plaintiff's damages; 
 
 1 Patten r. Chicago etc. R. Co., 32 Wis. 524, * Yonge v. Pacific Mail Steamship Co., 1 
 
 * Heirn v. McCaughan, 32 Miss. 17; The Cal. 353. 
 Zenobia, 1 Abb. Adm. 80. 6 Stoneseifer v. Sheble, 31 Mo. 243. 
 
 3 Porter v. Steamboat New England, 17 '4 WaD. 605. 
 
 Mo. 290; The Canadian, 1 Brown's Adm. 11; ' Ante, p. 17. 
 
 Thompson v. New Orleans etc. R. Co., 50 ^ Hamlin v. Great Northern R. Co., 26 L. 
 
 Miss. 315. J. (Exch.) 20; s. c. 1 Hurl. & N. 408.
 
 DAMAGES. 569 
 
 Should not be conjectural. 
 
 and for that purpose the nature of the plaintiff's business, its extent, and the 
 importance of his personal oversight and superintendence in conducting it, may 
 be shown. 1 Thus, the plaintiff, a lawyer, was struck by a bar of iron which 
 projected from a construction-train passing the car in which he sat. The inju- 
 ries resulting from this blow were of a painful and permanent nature, some of 
 the important effects of which would probably continue during life and sensibly 
 abridge the period of the same. The plaintiff was in early manhood, engaged in 
 an extensive practice, which was impaired by his subsequent inability to give it 
 the requisite attention, and he was afflicted with bodily derangements that meas- 
 urably unfitted him for the duties of his profession. It was held that, the object 
 of the law being fairly to compensate a party injured through the negligence of 
 another, the pecuniary losses resulting from the plaintiff 's inability to attend 
 to his business formed a proper item of damages, and that, under the circum- 
 stances of the case, the court had no data from which it could say that a verdict 
 of $20,000 for the plaintiff was too much.^ 
 
 In another case,' it was held to be error to instruct a jury that they would be 
 justified in taking into consideration "the bodily pain and sufferidg which the 
 plaintiff suffered, or was likely to suffer, in consequence of the neglect of the 
 defendants ; " that the instruction authorized an allowance of damages for future 
 pain which is rendered probable merely; that damages are to be proved, and 
 none are to be allowed except such as are shown by the proof to be at least to 
 a reasonable degree certain. But it was further held that there would be no 
 objection to the charge Avhen modified by the instruction "that future damages 
 could only be awarded when it was reasonably certain, from the evidence, that 
 such damages would inevitably and necessarily result from the original injury." 
 
 Where the plaintiff, a book-keeper, in violation of the agreement of the defend- 
 ants, was detained at New Orleans and Panama, on his way to California, an 
 unreasonable length of time, it was held improper to charge that the measure 
 of damages would be the wages of a book-keeper during the period of the 
 detention, at the then rate in San Francisco. It should have been left to the 
 jury to weigh the probabilities of his procuring employment in San Francisco 
 Immediately upon his arrival, and of such employment being continued dur- 
 ing the entire period in question.* In an action against a carrier of pas- 
 sengers to recover damages for a failure to carry the plaintiff within the 
 appointed time to the place for which he had taken passage, by reason whereof 
 he was unable to perform his errand there and was detained at expense, and to 
 the injury of his business at home, it was held that he must produce some evi- 
 dence that if he had arrived at the appointed time he might have done his 
 errand and would have promptly returned, or that he could not with due effort 
 accomplish his errand by reason of his delay in arriving. Nor could the plain- 
 tiff in such an action recover his expenses and the damages to his business 
 during a sojourn of several days, without some proof as to the time when he 
 first ascertained that he could not accomplish his errand and might therefore 
 return. The fact that his errand was to receive a loan of money previously 
 promised to Mm, and that, not receiving it, he was without money for the 
 
 1 Lincoln v. Saratoga etc. R. Co., 23 Wend. ^ Curtis v. Rochester etc. R. Co., 18 N. Y. 
 
 426. 534 (afflrrning s. c. in 20 Barb. 282). 
 
 * Walker v. Erie R. Co., 63 Barb. 260. * Yonge v. I'ac. Mail Steam. Co., 1 Cal. 353.
 
 570 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 expenses of returning until he received it from home, is not sufficient to show 
 a necessity for delaying his return, if he made no effort to borrow means 
 and did not show that there was difficulty in doing so.i 
 
 Where the conductor of the defendants' train unreasonably ordered the plain- 
 tiff, a passenger, to leave the train, and upon refusal placed his hand upon the 
 plaintiff 's shoulder to compel him to go, and the plaintiff rose from his seat and 
 followed the conductor out of the car, but in so doing slipped and fell upon the 
 car steps and was injured, it was held that the injuries caused by the fall were 
 not elements to be taken into consideration in estimating the damages he might 
 recover for being wrongfully ejected from the train.^ 
 
 In a case ^ where it appeared that the plaintiff contracted with the master of 
 a vessel in a foreign port for passage to this country, and paid a part of his pas- 
 sage-money in advance, but the master failed to fulfil his contract and the 
 plaintiff was obliged in consequence to talce passage in another vessel, it was 
 held that he was entitled to recover the passage-money paid, and the expenses 
 incurred by^him in awaiting the sailing of another ship. So, the master of a 
 schooner who had taken passage on a steamer to rejoin his vessel and was 
 carried past his destination, was held entitled to recover not only for his per- 
 sonal expenses and loss of time, but damages in the nature of demurrage for the 
 detention of his vessel, which was awaiting his return.* 
 
 In an action against a railroad company for a failure to furnish passenger-cars 
 as agreed upon for an excursion, at a stipulated price, the measure of recovery 
 would be the amount the plaintiff would have received as passage-money if the 
 train had gone as proposed, less the amount agreed to be paid for the use of the 
 cars.* 
 
 § 22. The same Rules as to the Measure of Damages apply to Corporations 
 as to Individuals. — The rule as to the computation of damages for injuries 
 inflicted upon a passenger by a carrier which is a corporate body is the same as 
 where the carrier is a natural person. There is no rule of public policy requir- 
 ing a greater or different compensation from that which would be due from an 
 individual under like circumstances.* 
 
 § 23. Elements of Damage. — In estimating compensatory damages in the 
 class of actions we are considering, the jury may take into consideration, as 
 elements, loss of time,' inability to attend to business,* pecuniary expenses,* 
 
 1 Benson v. New Jersey etc. Transp. Co., ' Pennsylvania R. Co. v. Books, 57 Pa. St. 
 fl Bosw. 412. 339. There need not necessarily be evidence 
 
 2 Williamson v. Grand Trunk R. Co., 17 of the value of the time lost, in order to re- 
 Upper Canada C. P. 615. cover therefor. Ward v. Vanderbilt, 4 Abb. 
 
 3 The Zenobia, 1 Abb. Adm. 80. App. Dec. 521. 
 
 * The Canadian, 1 Brown's Adm. 11. See 8 McKinley v. Chicagoetc. R. Co., 44Iowa, 
 
 also Porter v. The New England, 17 Mo. 814; Pennsylvania R. Co. r. Books, 57 Pa. St. 
 290. 339 ; Walker v. Erie R. Co., 63 Barb. 260. 
 
 9 The Canadian, 1 Brown's Adm. 11 ; In- 
 dianapolis etc. R. Co. V. Birney, 71 111. 391 ; 
 Francis v. St. Louis Transfer Co., 6 Mo. 
 App. 7. 
 
 
 Illinois 
 
 etc. 
 
 R. 
 
 Co. 
 
 V. 
 
 Demars, 
 
 44 
 
 ni. 
 
 s 
 
 no. 
 
 Illinois 
 
 etc. 
 
 R. 
 
 Co. 
 
 V. 
 
 Nelson, 
 
 69 
 
 111.
 
 DAMAGES. 571 
 
 Elements of. 
 
 bodily pain,' any incurable hurt^ (as where mental faculties are impaired),* per- 
 sonal inconvenience,* and mental anguish caused by bodily pain.* 
 
 Whether mental anguish caused neither by fear nor bodily injury — such, for 
 ■example, as arises from the indignity of ejection from a train without violence — 
 is an element of compensatory damages, is a question upon which the authorities 
 are not fully agreed.* It is said : " How can such damages be estimated in 
 money? The mental agony of a timid woman would be entirely different from 
 that of a bold man. No two cases could be weighed in like scales. To properly 
 •estimate such a cause of damage, the door must be opened to the realms of 
 philosophy, physiology, and psychology.'" But the same remarks would apply 
 to damages awarded for bodily pain. That injuries done can have no adequate 
 redress in money, or that damages may be difficult of estimation, is no reason 
 why pecuniary relief may not be granted as a compensation. 
 
 §24. Continued — Wealth of Defendant — Circumstances of Plaintiff — 
 Disfigurement of Person — Character of Plaintiff — Expense of Litigation — 
 Value of Gratuitous Nursing. — In an action for compensation for injuries 
 where there is no evidence of wilful negligence or malice the wealth or poverty 
 of the defendant cannot be taken into consideration.^ It would be of no value 
 in estimating the actual damages the plaintiff had sustained. But it is often 
 necessary to inquire into the plaintiff's condition in life, his habits, pursuits, and 
 necessities, in order to determine what actual damage he has sustained; and, 
 where pleaded, evidence of that nature may be received.' Thus, where damages 
 were claimed for the disfigurement of the plaintiff 's face, the fact that she was 
 "a plain girl, moving in an humble walk in life," was taken into consideration 
 
 » Klein v. Je wett, 26 N. J. Eq. 474 ; McKin- Flagg, 43 111. 364 ; Craker v. Chicago etc. R. 
 
 ley V. Chicago etc. R. Co., 44 Iowa, 314, 319; Co., 36 Wis. Gttl ; Ransom v. New York etc. 
 
 Morse V. Auburn etc. R. Co., 10 Barb. 621; R. Co., 15 N. Y. 415; Sherley v. Billings, 8 
 
 Ohio etc. R. Co. v. Dickerson, 59 Ind. 317; Bush, 147; Paine v. Chicago etc. R. Co., 45 
 
 Whalen v. St. Louis etc. R. Co., 60 Mo. 323; Iowa, 569; Hamilton v. Third Avenue R. Co., 
 
 Ransom v. New York etc. R. Co., 15 N. Y. 53 N. Y. 25; s. c. 48 How. Pr. 50. See Cole- 
 
 415; Curtis v. Rochester etc. R. Co., 20 Barb. ridge, J., in Blake v. Midland R. Co., 18 Q. 
 
 282 (affirmed in 18 N. Y. 534). See Pennsyl- B. 93; s. c. 21 L.J. (Q. B.) 233; IBJur. 562; 10 
 
 vania R. Co. v. Allen, 53 Pa. St. 276. And see Eng. Law & Eq. 437 ; s. p. Masters v. Warren, 
 
 Theobald v. Railway Passengers' Ass. Co., 10 27 Conn. 293 ; Seger v. Burkhamsted, 22 Conn. 
 
 Exch. 45; s. c. 26 Eng. Law & Eq. 432. 290; Canning v. Williamstown, 1 Cush. 451. 
 
 2 Whalen V. St. Louis etc. R. Co., 60 Mo. See contra, Johnson v. Wells, 6 Nev. 224 
 323; Pittsburgh etc. R. Co. v. Andrews, 39 (overruled in Quigley v. Central Pacific R- 
 Md. 329. Co., 11 Nev. 350) ; .Smith v. Pittsburgh etc. R. 
 
 3 Toledo etc. R. Co. v. Baddeley, 54 III. 19. Co., 23 Ohio St. 10. 
 
 < Hobbs V. London etc. R. Co., L. R. 10 Q. ' Whitman, J., in Johnson v. Wells, 6 Nev. 
 
 B. Ill; «. c. 44 L. J. (Q. B.)49; 23 Week. Rep. 224,232. 
 
 620; 32 L. T. (N. s.) 352. * Caldwell v. Murphy, 1 Duer, 2.33. In a 
 
 5 Pittsburgh etc. R. Co. v. Andrews, 39 case which will warrant the infliction of 
 Md. 329; Memphis etc. R. Co. v. Whitfield, exemplary damages, the wealth of the de- 
 44 Miss. 466; Johnson v. Wells, 6 Nev. 224; fendaut may be taken into consideration. 
 Muldowney v. Illinois etc. H. Co., 36 Iowa, New Orleans etc. R. Co. v. Hurst, 36 Miss. 
 462 ; Fairchild v. California Stage Co., 13 Cal. 660. 
 
 599. » Lains: v. Colder, 8 Pa. St. 479; Pennsyl- 
 
 6 The f<illowing authorities seem to hold vania R. Co. v. Books, 57 Pa. St. .3.39; Winters 
 the affirmative: McKinley v. Chicago etc. i7. Hannibal etc. R. Co., .39 Mo. 468. But aee 
 R. Co., 4/ Iowa, 314 ; Chicago etc. R. Co. v. Stockton v. Frey, 4 Gill, 400.
 
 572 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 in fixing the amount.' But it is said that the character of the passenger cannot 
 be considered as an element in estimating the amount of damages. ^ Unless the 
 case be such as to warrant exemplary damages, the jury are not allowed to take 
 into consideration the probable expenses of litigation, beyond the taxable costs 
 and counsel-fees.^ The value of nursing gratuitously bestowed upon a passen- 
 ger injured by an accident to a vessel upon which she was travelling has also 
 been held an element of damages.* 
 
 § 25. Continued — Damages ■whicli may be recovered by Husband and 
 "Wife jointly suing — Recovery by Father for Injury to Child. — In an action 
 against a passenger-carrier by a husband and vnie for injuries received by the 
 wife, damages for her personal injury and suffering may be recovered, but the 
 loss of income from her incapacity to labor, and the expenses of her cure, must 
 be recovered in an action brought by the husband alone. ^ In Illinois, the wife 
 can sue without joining her husband in such an action.* But the shock to the 
 feelings of the husband or parent cannot enter as an element of damages in a 
 suit for injuries received by the wife or child, — such damages being recover- 
 able only by those who in their own proper persons are injured J 
 
 § 26. Mitigation of Damages. — The fact that one who is injured by a pas- 
 senger-carrier continues to receive his salary from his emploj'^er during the time 
 he is disabled by such Injury cannot mitigate the damages that the injured per- 
 son would otherwise be entitled to recover in an action therefor.** Nor are the 
 damages in such a case subject to any deduction by reason of money having been 
 paid to the passenger by an insurance company, under a policy against accidents, 
 as compensation for the same injury.' The liability of a railroad company for a 
 violent ejection of a passenger from its train is not diminished by the fact that 
 he was at the time suffering from a disease which aggravated the injuries sus- 
 tained or rendered them more difficult of cure.'" But when a passenger offered, 
 without any explanation, a ticket which was void by reason of having been 
 punched, and refused to pay his fare, for which he was ejected from the car three 
 or four miles from a station, contrary to the Illinois statute, it was held that the 
 attempt of the plaintiff to use such a ticket without explanation as to how he 
 obtained it was evidence of wrong on his part, and must mitigate the damages 
 which otherwise would be awarded." 
 
 In an action by a passenger for wrongful ejection from a railroad train, it 
 
 1 The Oriflamme, 3 Sawyer, 397 ; «. c. 2 Cent. in the name of both. McDonald v. Chicago 
 L. J. 473; 7 Ch. Leg. N. 347. etc. R. Co., 26 Iowa, 124. 
 
 2 Johnson v. Wells, 6 Nev. 224. « Seymour v. Chicago etc. R. Co., 3 Biss. 
 
 3 Lincoln v. Saratoga etc. R. Co., 23 Wend. 43. • 
 
 425; New Orleans etc. R. Co. v. Ailbritton, ' Black v. Carrollton R. Co., 10 La. An. 33. 
 
 38 Miss. 242; The Oriflamme, 3 Sawyer, 397; * Ohio etc. R. Co. v. Dickerson, 59Ind. 317. 
 
 «. c. 2 Cent. L. J. 473; 7 Ch. Leg. N. 347. » Bradburn v. Great Western R. Co., L. 
 
 * The D. S. Gregory, 2 Ben. 226. R. 10 Exch. 1; s. c. 44 L. J. (Exch.) 9; Wtts- 
 
 5 Klein v. Jewett, 26 N. J. Eq. 474; Hop- burgh etc. R. Co. v. Thompson, 56 111. 138. 
 
 kins V. Atlantic etc. R. Co., 36 N. H. 9. In '" Brown v. Hannibal etc. R. Co., 66 Mo. 
 
 Iowa, the common-law rule as stated in the 588. 
 
 text is changed by statute. Expenses of " Terre Haute etc. R. Co. v. Vauatia, 21 
 
 her cure and damages for loss of her ser- 111. 188. 
 
 vice may be recovered in an action brought
 
 DAMAGES. 
 
 573 
 
 Exemplary. 
 
 appeared that the rate of fare fixed by the company was higher than that 
 allowed by law ; that the plaintiff tendered the legal rate ; that upon his refusal 
 to pay more he was ejected from the cars, but without any rudeness or unnec- 
 essary violence; that at the time he took passage the plaintiff knew the rate 
 established by the company, and expected to be ejected from the cars, intending 
 to bring an action for such ejection, in order to test the right of the company to 
 charge the established rate. Upon these facts, the plaintiff was held entitled to 
 compensatory damages only, and the company was permitted, for the purpose 
 of mitigating the damages, to give in evidence subsequent declarations of the 
 plaintiff tending to prove that his object in taking passage on the cars was to 
 make money by bringing suit against the company for demanding more than the 
 statutory rate of fare.i 
 
 § 27. Exemplary Damages. — (1.) May be awarded, token. — Damages may be 
 given in some cases, for injuries received by a passenger, to a greater amount 
 than will compensate for the injury actually sustained.^ Such damages are 
 termed exemplary, punitive, or vindictive damages, — sometimes called "smart- 
 
 1 Cincinnati etc. R. Co. ». Oole, 29 Ohio 
 St. 126. 
 
 - Able writers have differed on the ques- 
 tion whether exemplary damages may be 
 given in any case. Prof. Greenleaf and Mr. 
 Sedgwick have discussed it at length, and 
 subsequent annotators of their respective 
 works have taken up the discussion so ably 
 carried on by these great authors in their 
 controversy. Each cites a large number of 
 authorities to sustain his position, and each 
 apparently succeeds to his own satisfaction 
 in proving that his views are correct. The 
 l)Osition held by Prof. Greenleaf, as stated 
 in his great work on Evidence (2 Greenl. on 
 Ev., 13th ed, § 253 — see note2) is as follows: 
 "Damage- are given as a compensation, 
 recompense, or satisfaction to the plaintiff 
 for an injury actually received by him from 
 the defendant. Thei/ should be precisely com- 
 mensurate with the injury, neither more nor 
 less, and this whether it be to his person or 
 estate." While Mr. Sedgwick, in his valu- 
 able treatise on the Law of Damages (Sedgw. 
 on Dam., 6th ed., p. 38 — see also chap. 18, p. 
 466, note 1), says: " Where either of these 
 elements of fraud, malice, gross negligence, 
 or oppression mingle in the controversy, the 
 law, instead of adhering to the system or 
 even the language of compensation, adopts a 
 wholly different rule. It permits the jury to 
 give what it terms punitory, vindictive, or 
 exemplary damages; in other words, blends 
 together the interest of society and of the 
 aggrieved individual, and gives damages, 
 not only to recompense the sufferer, but to pun- 
 ish the offender." Theron Metcalf, then re- 
 porter of the Slate of Massachusetts, and 
 
 since judge of the Supreme Court of that 
 State (3 Am. Jur. 287-313), and Chancellor 
 Kent (2 Kent's Comm., 12th ed., pt. 4, § 24, p. 
 15, note a) take opposite sides on this ques- 
 tion, and numerous judges and text-writers 
 have noticed the controversy. See Fay v. 
 Parker, o3 X. H. 342, where the question is 
 considered at length, and numerous author- 
 ities on the subject are reviewed. The ques- 
 tion, however, maybe considered as settled; 
 the current of authority at the present time 
 being in accord with the principle stated in 
 the text. " It is a well-established principle 
 of the common law, that in actions of tres- 
 pass and all actions on the case for torts, a 
 jury may inflict what are called exemplary, 
 punitive, or vindictive damages upon a de- 
 fendant, having in view the enormity of his 
 offence rather than the measure of compen- 
 sation to the plaintiff. We are aware that 
 the propriety of this doctrine has been ques- 
 tioned by some writers, but if repeated judi- 
 cial decisions for more than a century are 
 to be received as the best exposition of what 
 the law is, the question will not admit of 
 argument. By the common as well as by 
 statute law, men are often punished for 
 aggravated misconduct or lawless acts, by 
 means of a civil action, and the damages 
 inflicted by way of penalty or punishment 
 given to the party injured." Grier, J., in 
 Day V. Woodworth, 13 Ilow. 363, 371. See 
 also Phila. etc. U. Co. v. Quigley, 21 How. 
 202, 213; Milwaukee etc. U. Co. v. Arms, 91 
 U. S. 189; Memphis etc. U. Co. v. Whitfield. 
 44 Miss. 460; Hopkins v. Atlantic etc. B. Co., 
 36 N. H. 9.
 
 574 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 money," — and are only awarded in cases where there is an element either of 
 fraud, malice, such a degree of negligence as indicates a reckless indifference to 
 consequences, oppression, insult, rudeness, caprice, wilfulness, or other causes 
 of aggravation in the act or omission causing the injury. They are inflicted as a 
 punishment to the wrong-doer and as an example to others.^ Some of the authori- 
 ties include "gross negligence " on the part of the defendant as one of the ele- 
 ments which, mingling in the wrongful act complained of, entitles the plaintiff 
 to exemplary damages.^ But the better view is given in an opinion delivered 
 in a recent case in the Supreme Court of the United States.* This was an action 
 brought for damages sustained by a lady passenger on a train at the time when a 
 collision occurred. The train, while running at a speed of fourteen or fifteen 
 miles an hour, collided with another train moving in an opposite direction on 
 the same track. The jar occasioned by the collision was light, and more of a 
 push than a shock. The fronts of the two engines were demolished, and a new 
 engine removed the train. This was all the testimony offered by either party as 
 to the character of the collision, and the cause of it ; but there was evidence 
 tending to show that the lady was throvm from her seat, and sustained the inju- 
 ries of which she complained. The trial court gave the following instruction : 
 " If you find that the accident was caused by the gross negligence of the defend- 
 ant's servants controlling the train, you may give the plaintiffs punitive or exem- 
 plary damages." In reversing the case, Mr. Justice Davis, who delivered the 
 opinion of the Supreme Court, said: " Some of the highest English courts have 
 come to the conclusion that there is no intelligible distinction between ordinary 
 and gross negligence.* Lord Cranworth, in Wilson v. Brett,^ said that gross neg- 
 ligence is ordinary negligence with a vituperative epithet; and the Exchequer 
 Chamber took the same view of the subject.* In the Common Pleas, Grill v. Gen- 
 eral Iron Screw Collier Company ' was heard on appeal. One of the points raised 
 was the supposed misdirection of the Lord Cheep Justice who tried the case, 
 because he had made no distinction between gross and ordinary negligence. Mr. 
 Justice WiLLEs, in deciding this point, after stating his agreement with the dictum 
 of Lord Cranworth, said : ' Confusion has arisen from regarding '♦ negligence " 
 as a positive instead of a negative word. It is really the absence of such care 
 as it was the duty of the defendant to use. " Gross " is a word of description, 
 and not of definition ; and it would have been only introducing a source of con- 
 fusion to use the expression "gross negligence " instead of the equivalent, — a 
 want of due care and skill in navigating the vessel, — which was again and again 
 used by the Lord Chief Justice in his summing up.' ' Gross negligence ' is 
 
 > Heirn v. McCaughan, 32 Miss. 17; New one of reckless negligence, and is not a 
 
 Orleans etc. R. Co. v. Hurst, 36 Miss. 660; proper case for exemplary damages." 
 
 Graham v. Pacific R. Co., 66 Mo. 536; New « Frink v. Coe, 4 Greene (Iowa), 555; Tay- 
 
 Orleans etc. R. Co. v. Statham, 42 Miss. 607; lor v. Grand Tmnk R. Co, 48 N. H. 304; Hop- 
 
 Peck V. Neil, 3 McLean, 22; Pennsylvania R kins v. Atlantic etc. R. Co., 36 N. H. 9. 
 
 Co. V. Books, 57 Pa. St. 339; Caldwell v. New 3 Milwaukee etc. R. Co. v. Arms, 91 U. S. 
 
 Jersey Steamboat Co., 47 N. Y. 282; Chicago 489. 
 
 etc. R. Co. V. Williams, 55 111. 185. In The < Redf. on Car., § 376. 
 
 D. S. Gregory, 2 Ben. 226, 240, the judge says : « 11 Mee. & W. 113. 
 
 " I allow nothing for exemplary, punitive, « Beal v. South Devon R. Co., 3 Hurl. & 
 
 or vindictive damages. The case is not one Colt. 3^7. 
 
 of malicious or wilful injury, although it is " L. R. 1 C. P. 600.
 
 DAMAGES. bib- 
 
 Exemplary — Corporations liable. 
 
 a relative term. It is doubtless to be understood as meaning a greater want of 
 care than is implied by the term ' ordinary negligence ; ' but, after all, it means 
 the absence of the care that was necessary under the circumstances. In this 
 sense the collision in controversy was the result of gross negligence, because the 
 employees of the company did not use the care that was required to avoid the 
 accident. But the absence of this care, whether called gross or ordinary negli- 
 gence, did not authorize the jury to visit the company with damages beyond the 
 limit of compensation for the injury actually inflicted. To do this, there must 
 have been some wilful misconduct, or that entire want of care which would raise 
 the presumption of a conscious indifference to consequences. Nothing of this 
 kind can be imputed to the persons in charge of the train ; and the court, there- 
 fore, misdirected the jury." ' 
 
 (2.) When Corporations are liable. — There is no doubt that corporations, like 
 individuals, may be liable in a proper case for exemplary damages.'' Some of 
 the authorities, however, hold that there must be either an authorization or rati- 
 fication of the act complained of, by the corporation, to warrant the infliction of 
 more than compensatory damages.* In the language of one of the authorities : 
 "Where a railroad company adopts all rules and regulations needful for the 
 safety of the passengers, and employs competent agents whose duty it is to see 
 that these rules and regulations are observed, I do not think that the company, 
 in case of injury to the passengers, happening by reason of the failure of the 
 agent to perform this duty, can be held liable for punitive damages. If, however, 
 the company, as such, is in fault, a different rule applies. The company, for its 
 own carelessness, may be justly held liable for smart-money." * Others hold 
 that slight acts will be suflScient to indicate ratification, — such as retaining in 
 the service of the company the employee whose act caused the injury, after 
 knowledge of the act by the officers of the corporation.* 
 
 But the rule which is in accord with reason and the weight of authority is that 
 passenger-carriers, although corporations, may be liable, in a proper case, in 
 exemplary damages for injuries to passengers caused by their agents, without a 
 direct authorization or subsequent ratification of the act complained of. In a 
 recent opinion on this subject, it is said of the servants of a corporation: " They 
 act on the peril of the corporation and their own. Indeed, as that fictitious 
 
 1 See also Western Union Tel. Co. v. " Malecek v. Tower Grove etc. R. Co., 57 
 
 Eyeer, 91 U. S. 495, note; Kentucky etc. R. Mo. 17; Graham v. Pacific R. Co., 66 Mo. 5:56; 
 
 Co. V. Dills, 4 Bush, 593; Quigley v. Central Pittsbuigh etc. R. Co. v. Slusser, 19 Ohio St. 
 
 Pacific R. Co., 11 Nev. 350; McKeon v. Citi- 157; Atlantic etc. R. Co. v. Dunn, 19 Ohio St. 
 
 zens' R. Co., 42 Mo. 79; Doss v. Missouri 162; Caldwell «. New Jersey Steamboat Co., 
 
 etc. R. Co., 59 Mo. 27; Southern R. Co. v. 47 N. Y. 282. Con/ra, Wardrobe v. California 
 
 Kendrick, 40 Miss. 374; Thompson v. New Stage Co., 7 Cal. 118. 
 
 Orleans etc. R. Co., 50 Miss. 315; Hill v. New •' New Orleans etc. R. Co. v. Allbritton, 38 
 
 Orleans etc. R. Co., 11 La. An. 292; Toledo Miss. 242; Hagan v. Providence etc. R. Co., 3 
 
 etc. R. Co. V. Patterson, 63 111. 304; Pullman R. I. 88; Milwaukee etc. R. Co. v. Finney, 10 
 
 etc. Co. V. Reed, 75 111. 125; Seymour v. Chi- Wis. 388 (overruled in Craker v. Chicago etc. 
 
 cago etc. R. Co., 3 Biss. 43; Du Laurans v. R. Co., 36 Wis. 657) ; Turner v. North Beach 
 
 St. Paul etc. R. Co., 15 Minn. 49; Hamilton v. etc. R. Co., 34 Cal. 594. 
 
 Third Avenue R. Co., 53 N. Y. 25; Paine v. * Ackerson v. Erie R. Co., 82 N. J. L. 2.54, 
 
 Chicago etc. R. Co., 45 Iowa, 569; Pittsburgh 260. 
 
 etc. R. Co. V. Slusser, 19 Ohio St. 157. But "^ Perkins v. Missouri etc. R. Co., 66 Mo. 
 
 see Kansas Pacific R. Co. ». Kessler, 18 Kan. 201; Graham v. Pacific R. Co., 66 Mo. .536; 
 
 623, Goddard v. Grand Trunk R. Co., 57 Me. 202.
 
 57(5 
 
 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 entity, the corporation, can act only through natural persons, its ofHcers and 
 servants, and as it of necessity commits its trains absolutely to the charge of 
 officers of its own appointment, and passengers of necessity commit to them 
 their safety and comfort in transitu, under conditions of such peril and subor- 
 dination, we are disposed to hold that the whole power and authority of the 
 corporation, pro hac vice, is vested in these officers, and that, as to passengers 
 on board, they are to be considered as the corporation itself ; and that the conse- 
 quent authority and responsibility are not generally to be straitened or impaired 
 by any arrangement between the corporation and the officers : the corporation 
 being responsible for the acts of the officers in the conduct and government of 
 the train, to the passengers travelling by it, as the officers would be for them- 
 selves if they were themselves the owners of the road and train." ^ 
 
 Another authority says : *' We confess that it seems to us that there is no class 
 of cases where the doctrine of exemplary damages can be more beneficially 
 applied than to railroad corporations in their capacity of common carriers of 
 passengers ; and it might as well not be applied to them at all as to limit its 
 application to cases where the servant is directly or impliedly commanded by 
 the corporation to maltreat and insult a passenger, or to cases where such an 
 act is directly or impliedly ratified ; for no such cases will ever occur. A corpo- 
 ration is an imaginary being. It has no mind but the mind of its servants ; it 
 has no voice but the voice of its servants ; and it has no hands with which to act 
 but the hands of its servants. All its schemes of mischief, as well as its schemes 
 of public enterprise, are conceived by human minds and executed by human 
 hands; and these minds and hands are its servants' minds and hands. All 
 attempts, therefore, to distinguish between the guilt of the servant and the 
 guilt of the corporation, or the malice of the servant and the malice of the 
 corporation, or the punishment of the servant and the punishment of the cor- 
 poration, is sheer nonsense, and only tends to confuse the mind and confound 
 the judgment. * * * It is our judgment, therefore, that actions against 
 corporations for the wilful and malicious acts of their agents and servants in 
 executing the business of the corporation should not form exceptions to the 
 rule allowing exemplary damages. On the contrary, we think this is the very 
 class of cases, of all others, where it will do the most good, and where it is the 
 most needed." ^ 
 
 (3.) Questions of Law and Questions of Fact. — In actions for neglect of duty 
 whereby passengers are injured, the jury are the sole judges as to the existence 
 of facts showing that the act complained of was attended with circumstances 
 of aggravation ; but what elements must form a part of the transaction to warrant 
 the finding of exemplary damages is a question of law.* 
 
 § 28. Excessive Damages — When Appellate Courts -will reverse Judgments 
 on account of. — In actions for injuries to passengers, where there is no fixed 
 rule of compensation, courts are loath to set aside the verdicts of juries or to 
 
 1 Bass V. Chicago etc. R. Co., 36 Wis. 450; Rogers, 38 Ind. 116; Baltimore etc. R. Co. v. 
 ». c. anie, p. 311. Blocher, 27 Md. 277; Quigley v. Central 
 
 2 Goddard v. Grand Trunk R. Co., 57 Me. Pacific R. Co., 11 Xev. 350. 
 
 202, 223. See also Hanson v. European etc. ^ Jackson v. Second Avenue R. Co., 47 N. 
 
 R. Co., 62 Me. 84; Chicago etc. R. Co. v. Y. 274; Southern R. Co. v. Kendrick, 40 Miss. 
 Herring, 57 111. 59; Jeffersonville R. Co. v. 374.
 
 DAMAGES QUANTUM OF. 577 
 
 Wrongfully ejecting Passengers. 
 
 reverse judgments founded thereon, simply because the damages awarded seem 
 excessive. In a recent New York case ' the court say: "Even if it was clear 
 that the damages were excessive, it is not the province of this court to interfere 
 on any such ground." But if the damages are so manifestly unjust and dispro- 
 portionate as to show that the jury have been misled either by passion, preju- 
 dice, partiality, or misapprehension, the courts will usually interfere.' The 
 following instances of the action of courts, either in reversing judgments or 
 refusing to interfere on this ground, will afford illustration of the foregoing : — 
 
 §29. Illustrations. — (1.) For wrongfully ejecting Passenger. — A passenger 
 paid for a railroad ticket to a certain station, but through inadvertence received 
 a ticket to an intermediate point, and refused to pay the extra fare (only twenty 
 cents) subsequently demanded. He also refused to leave the train, so that he 
 had to be put off by force, but immediately got on board another coach, agree- 
 ing to pay the sum demanded. While making change, the passenger used grossly 
 profane and obscene language in the presence of ladies, for which he was again 
 forcibly expelled, no more force being used at either time than was necessary to 
 overcome his resistance. A verdict of $1,500 was held to be grossly excessive, 
 and out of all proportion to the injuiy inflicted upon him other than what was 
 attributable to his own misconduct.^ A passenger who had purchased a ticket 
 for a particular berth in a sleeping-car, and lost the same, gave satisfactory 
 assurance that he had purchased such ticket, but was nevertheless wrongfully 
 rxpelled from the sleeping-car, but without circumstances of indignity, the 
 conductor having oulj' an honest purpose to execute a reasonable rule of the 
 company. Three thousand dollars was held to be grossly excessive damages 
 for tliis conduct, as the case showed only an honest difference of opinion between 
 the conductor and passenger, and that the latter might have kept his berth by 
 paying the sum of $1.50. The passenger was therefore held to be entitled to 
 recover only the price paid for the lost ticket, and a reasonable compensation 
 for the inconvenience suffered by being deprived of his berth in the sleeping-car.* 
 
 The conductor of a railroad train took up the ticket of a passenger, giving 
 him no check in return, and when within a few miles of such passenger's des- 
 tination, accused him of attempting to ride beyond the distance for which he 
 liad paid, charged him with falsehood, treated him insolently in the presence of 
 the other passengers, seized and put him off the train in a rude and angry man- 
 ner at a place where there was no station or house, it being cold and dark and 
 about nine o'clock at night. A verdict of $700 for the plaintiff was held not 
 excessive.^ 
 
 A passenger who had purchased a first-class ticket began his journey upon a 
 train composed of freight and passenger cars. A regular passenger-train over- 
 
 1 Maher v. Central Park R. Co., 67 X. Y. Minn. 49; Georgia etc. R. Co. v. McCurdy, 45 
 52,56 (afli •inings. c. 7 Jones & Sp. If,:-,). Ga. 288; Monlgomery etc. R. Co. v. I{oriiig,51 
 
 2 Terre Haute etc. U. Co. v. Vanatta, 21 Ga. 582; Collins v. Albany etc. U. Co., 12 
 111. 188; Graham v. Pacific H. Co., 60 Mo. 5156; Uaib. 492; Clapp v. Hudson liiver R. Co;, I'J 
 Union Pacilic R. Co. v. Hand, 7 Kan. 380; IJaib. 161; Farish v. Roigle, 11 (Jratt. (597. 
 Missouri etc. R. Co. v. Weaver, 16 Kan. 456; ^ Chicago etc. R. Co. v. Gi-inin, 68 111. 499. 
 New Orleans etc. R. Co. v. Ilurst, ;50 .Miss. 660 ; ■• Pullman etc. Co. v. Heed, 76 111. 125. 
 New Orleans etc. R. Co. v. Statham, 42 .Miss. •• Indianaiiolis etc. 11. Co. v. Milligan, 50 
 <;u7; Uu Laurans v. St. Paul etc. It. Co., l^ Ind. :;'.)■-'.
 
 578 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 took this traiu at one of the stations, and in order the sooner to arrive at Ms 
 destination, the passenger decided to linisli his journey upon such train. The 
 conductor of the tirst train assured the passenger that the checli which he had 
 received in exchange for his ticket would be received by the conductor of the 
 other train as a ticket to his destination. But this conductor i-efused to accept 
 it, and upon tlie refusal of the passenger to pay his fare, caused him to be 
 forcibly ejected, at night, wliere there was no station and no house. When the 
 train upon which the passenger had originally embarked came along, he was 
 taken upon it and carried to his destination. It was held that a verdict, in an 
 action for damages against the company, for .$400 was not excessive. i 
 
 The plaintiff had shipped upon the defendants' raih'oad a car-load of stock 
 and received from the railroad company what was called a " stock pass," and 
 upon his return trip, the pass, though unexpired, was not honored and his fare 
 was demanded. Refusing to pay, he was ejected from the train, without force, 
 between five and six o'clock in the evening, at a station within a mile of the 
 stock-yards where he had boarded it. He walked back to the stock-yards, 
 purchased a ticket, and was carried on one of the company's trains to his des- 
 tination on the following morning. It also appeared that the weather was cold, 
 with snow on the ground ; that it was dark at the time he was put off the train ; 
 that he had about .$400 on his person, and was made sick by becoming over- 
 heated; was afterwards feeble and unable to do much woi'k for two or three 
 months ; but that the conductor who ejected him was acting under the belief 
 that he was not authorized to receive the pass. The judgment given in the 
 case, on a verdict of $800, was affirmed.^ 
 
 The plaintiff bought a ticket, and upon presenting it to the conductor it 
 was taken up; but the conductor refused to allow him to ride without pay- 
 ing his fare again, because the agent at the station where he had boarded the 
 train had informed the (conductor that the plaintiff had procured the ticket 
 without paying for it. The plaintiff was accordingly ejected from the train at a 
 point over a quarter of a mile from the station where he had started, no more 
 force being used than was necessary for the purpose; and the plaintiff was 
 delayed only one day, and compelled to buy another ticket at an expense of 
 $40.50. A verdict of $5,000 v>-as held to be so excessive as to indicate passion 
 and prejudice on the part of the jury.^ It was shown that the plaintiff tendered 
 the conductor of the defentlant's train fifty cents for his fare to his destination; 
 that the conductor took the money, but demanded ten cents more because the 
 passenger had not procured a ticket before entering the car ; that the plaintiff 
 refused to pay the further sum demanded, and the conductor, although keeping 
 the fifty cents, ejected him at the next station, which was not his place of des- 
 tination. It was held that a verdict ol $500, while large, would not justify the 
 aj)pellate court in reversing the judgment.* 
 
 It appeared that a passenger was wrongfully expelled from a train at a place 
 which was not a station, three miles from where he entered the cars ; that in 
 i',,ecting him he resisted, and that three of the company's employees overpow- 
 i-red him; that he remonstrated against being put off on the open praii'ie, and 
 
 » Toledo etc. R. Co. v. McDonough, 53 lud. ^ Quigley v. Cent. Pac. R. Co., 11 Nev. 350. 
 
 ISO. ^ Du Laurans v. St. Paul etc. R. Co., 15 
 
 2 Graham r. I'acitic li. Co., 66 Mo. 536. Minn. 49.
 
 DAMAGES QUANTUM OF. 579 
 
 Wrongfully ejecting Passengers. 
 
 offered to pay his fare to the next station rather tlian be put off there ; that after 
 being put off he struck, or struck at, one of the brakemen who assisted in his 
 ejection, whereupon the brakeman knocked him down, jumped upon him, and 
 only desisted from the assault when recalled by the conductor to the train. 
 The passenger was not permanently injured or disfigured. His mouth was cut, 
 and he received two other wounds on his head. He was in poor health, and had 
 been for four years. It was held that a verdict for $5,000 was excessive. ^ A 
 passenger was ejected from a train because the conductor was pnder the impres- 
 sion he had not given him his ticket. The place where he was ejected was 
 three miles from the station where he had got on, but he was compelled to wait 
 only four hours, when he took the next train to his destination. The conductor 
 was under the impression tliat the passenger was trying to impose on him, but 
 his conduct towards the passenger was neither violent nor harsh. It was held 
 that a verdict of £50 was excessive, and a new trial was accordingly granted.^ 
 
 (2.) For Removal of a Passenger from a Train at a Place not a Begular Sta- 
 tion. — In some of the States there are statutes prohibiting the removal of a 
 passenger from a train at other than a regular station, although the passenger 
 has been guilty of conduct justifying expulsion. Such is the law of Illinois. In 
 the following cases of unlawful expulsion the question as to excess of damages 
 has received the attention of the courts of last resort: A passenger refused 
 to pay the tariff rate, and was ejected from the train about eighty rods from a 
 station, without violence or any aggravating circumstances. One thousand 
 dollars was held to be grossly excessive, and a judgment therefor was reversed.^ 
 A passenger offered, without explanation, a ticket which was void by reason 
 of having been punched. He refused to pay his fare, and was ejected from the 
 car, without any aggravating circumstances, three or four miles from a station. 
 In this case also, $1,000 was held to be such excessive damages as to require 
 that the verdict be set aside.* 
 
 A passenger wantonly refused to pay his fare, simply insisting upon riding in 
 the cars without paying. He was ejected at a point two miles distant from a 
 regular station, but in a manner free from indignity, and was subjected to no 
 other injury or inconvenience by the expulsion than that of being obliged to 
 walk to the station. Such a person is not entitled to recover any more than 
 nominal damages ; therefore, in such a case, a recovery of a verdict for $150 
 was considei'ed excessive and a new trial was granted.^ 
 
 A passenger on a freight-train was compelled to get off at night at a water- 
 tank, about a quarter of a mile from a station, because he had no ticket, in con- 
 sequence of a rule of the company wherel)y passengers were not allowed to 
 travel on freight-trains without tickets. The passenger was lame, and carried 
 two heavy bundles. In order to reach the station he had to cross a covered 
 railway bridge on a narrow foot-path. Upon these facts, a verdict of $100 was 
 deemed not excessive.** A passenger refused to pay Iiis fare, but told the con- 
 ductor he would get off if the train was stopped. Upon the train being stopped 
 
 1 Missouri etc. R. Co. v. Wcavei-, 16 Kan. ■ Chicago etc. R. Co. v. Parks, 18 111. 460 
 
 450. See also Stephen v. Smith, 20 Vt. 160. 
 
 ^ Huntsman v. Great Western R. Co., 20 < Terre Hiiutc H. Co. v. Vanatta, 21 111. 188. 
 
 Upper Canada Q. li. 24. See also Ham.lton ' Chicago etc K. Co. v. R.ihcrl^, 40 III. 503. 
 
 /■. Third Avenue K. Co., 48 How. Pr. 50. « Chicago etc. R. Co. t'. Klagg, ■):{ III. :m.
 
 580 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 at a distauce of three or four miles from a station, he refused to get off, and was 
 then ejected with some violence, — his face being scratched, and the skin slightly 
 abraded in one or two places on his limbs. It was held that a verdict of $1,000 
 was excessive, and the judgment was reversed. ^ 
 
 A passenger was put off the cars at some distauce from a station, for the 
 reason that he had not procured a ticket before getting aboard. It appeared 
 that the station was closed ; that the passenger so informed the conductor, and 
 offered to pa}' the regular fare, which was refused ; that this was done in the 
 night-time, and the passenger compelled to walk back to the station. It was 
 held that, as the jury had found a verdict for $250, and a remittitur of .$50 had 
 been entered in the trial court, and judgment given for .$200, this sum was not 
 excessive, and the judgment was affirmed. ^ In another case, where the facts 
 were similar to those in the preceding case, and a verdict of .$500 was given, it 
 was held by a majority of the court that the damages were excessive and that 
 the judgment should be reversed.' 
 
 (3.) For Refusal to admit Passenger to a Car — Colored Person. — Where a 
 colored woman was refused admittance to the "ladies' car" solely on account 
 of her color, and was directed to take a seat in another car, which was set 
 apart for and mostly occupied by men, which she declined to do, insisting upon 
 her right to be admitted to the ladies' car, and the evidence justified the 
 conclusion that a brakeman, in excluding her from the car, did so in a very rude 
 manner, in the presence of several persons, it was held that a verdict of $200 
 recovered by the woman against the railroad company was not excessive.' 
 But in a case where a colored woman hailed a passing street car, which the 
 conductor refused to stop solely for the reason that the woman was colored, 
 and the jury gave a verdict for $500, such damages were held excessive.* So, 
 where it appeared that a colored woman signalled a street car to stop, and 
 upon getting on the platform, was ejected with some violence by the conductor, 
 at the hour of ten o'clock at night, but without any appreciable injury, and 
 immediately afterwards was conveyed on another of the same company's cars to 
 her destination, a verdict for $750 was held to be excessive, and the judgment 
 thereon reversed.^ 
 
 (4.) For Assault upon Passenger by Carner''s Servants. — The Supreme Court 
 of Wisconsin has adopted the rule that the plaintiff in cases of this kind is not 
 entitled to exemplary damages against the principal for the malicious act of the 
 a\ent, without proof that the principal expressly authorized or confirmed it. 
 But this does not mean that in such cases the recovery against the principal 
 for the tort committed by its agent is limited to mere pecuniary loss. On the 
 contrary, a very liberal allowance was made in at least one case for mental suf- 
 fering. A conductor of a railway train, after engaging in a short, bantering 
 conversation with the plaintiff, a female passenger, seized and kissed her several 
 times. The plaintiff made no desperate resistance, but the court thought that 
 $1,000 was no more than adequate compensation for the torture inflicted upon 
 
 1 Chicago etc. R. Co. v. Peacock, 48 111. '' Chicago e4:c. R. Co. v. Williams, 55 111. 
 25.3. 185. 
 
 2 Illinois etc. R. Co. «. Johnson, 67 111. * Pleasants r. North Beach etc. R. Co., .S4 
 ;jl2. Cal. 586. 
 
 3 Illinois etc. R. Co. v. Cunningham, 67 111. ''' Turner v. North Beach etc. R. Co.. 34 
 31G. Cal. 594. 
 
 i
 
 DAMAGES QUANTUM OF. 581 
 
 For carrying beyond Destination. 
 
 her sensibilities. Ryax, C. J., said: " She was entitled to liberal damages for 
 her terror and anxiety, her outraged feelings and insulted virtue, for all her 
 mental humiliation and suffering." ' 
 
 In a Kentucky case,- the jury were instructed not to give exemplary damages, 
 and accordingly rendered $4,400 as compensatory damages in a case where the 
 clerk of a steamboat unwarrantably assaulted a deck-passenger, a boy fifteen 
 years of age, who suffered, among other injuries, the loss of an eye. The Court 
 of Appeals held that these damages were not excessive. 
 
 A verdict of $4,850 was sustained in a case where the assault was entirely un- 
 provoked and without justification. The plaintiff suffered no personal injury, 
 but was assailed by the defendant's brakeman in language coarse, profane, and 
 grossly insulting, supplemented by terrible threats of personal violence. The 
 plaintiff was a person in feeble health, and wholly unable to offer resistance, 
 and the brutal servant was retained in the employ of the defendant after the 
 occurrence.' In another case, shortly afterwards decided by the same court,* 
 the plaintiff and the defendant's brakeman had a dispute in regard to the pres- 
 ence of a dog of the former in the passenger-car, which terminated in a slight 
 struggle in which the brakeman was worsted. This difficulty had entirely ended, 
 when the brakeman approached the plaintiff from behind and inflicted several 
 blows upon his head and shoulders with a heavy ivon stove-poker. There was 
 testimony as to the result that "the external table of the [plaintiff's] skull was 
 cracked, and his eyes badly affected, indicating danger of palsy of the optic 
 nerve and the entire loss of its functions." Under these circumstances the 
 Supreme Judicial Court did not feel justified in setting aside the verdict as 
 excessive." 
 
 Other cases show a disposition of courts to allow a liberal measure of dam- 
 ages under circumstances of this kind.® 
 
 (5.) For carrying Passenger beyond his Destination. — Two cases decided by 
 the Supreme Court of Mississippi upon this point show the extravagant idea 
 which juries are apt to entertain as to the proper measure of damages in actions 
 against railway companies, — a sentiment sometimes shared in by courts. This 
 was certainly the fact in one of these cases. In this case the jury gave damages 
 to the amount of $4,500 on account of the defendant conveying the plaintiff 
 four hundred yards beyond the station at which they had agreed to carry him, 
 and then compelling him to leave the cars against his remonstrance, and con- 
 trary to his request that they should back the cars to the station. The Supreme 
 Court, in reviewing the proceedings in the court below, expressed their regret 
 that the jury had not acted with more leniency, but did not feel at liberty to 
 disturb the verdict.' This case was subsequently criticised in a case where the 
 
 1 Craker v. Chicago etc. R. Co., 36 Wis. were not restricted in their findings to com- 
 657, 679. jiensatory damages. The whole doctrine of 
 
 2 Sherley v. Billings, 8 Bush, 147. exemplary damages was fully examined in 
 
 3 Goddard v. Grand Trunk R. Co., 57 Me. Goddard v. Grand Trunk K. Co., and its ap- 
 202. In a very similar case, the Supreme plication allowed in that case and in Hanson 
 Court of Missouri sustained a verdict of v. European etc. R. Co. 
 
 $500 as damages. Malecek v. Tower Grove « McKmley v. (;hicago etc. tt. Co., 44 Iowa, 
 
 etc. R. Co., 57 Mo. 17. 314 ; IJryant v. Rich, \m Mass. 180. 
 
 4 Hanson r. European etc. R. Co., 02 Me. Kt. 'New Orleans etc. R. Co. v. Hurst, ;;i; 
 '■> In ea(;h of the foregoing cases the jury Miss. OGO.
 
 582 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 plaintiff, a person in ill-health, was unable to get off the cars when they stopped 
 at his destination, although they remained stationary the usual length of time. 
 The conductor having been notified that the plaintiff had not succeeded in 
 alighting, again stopped the train. This time the car in which the plaintiff was 
 riding was distant only about sixty feet from the platform of the station. No 
 request was made to back the car to the platform. The plaintiff descended the 
 steps of the car, and was then carried into the station in a chair by his friends 
 and the company's employees. For the alleged wrong done in not detaining the 
 train at the first stoppage a sufiicient length of time to enable the plaintiff to 
 get off, the jury awarded the sum of $3,275 as damages, which verdict the 
 Supreme Court unhesitatingly set aside, remarking that this course ought to 
 have been pursued in the case before noticed. ^ 
 
 (6.) For Injury to Passenger in Bailroad Accident. — The plaintiff, a passenger 
 on defendant's railroad train, was injured in a railroad accident, and in conse- 
 quence was confined from two to three weeks to his bed. When quiet, he did 
 not suffer greatly from pain, and after that period he began to walk about, 
 though with great difficulty, but did not resume business in his office for a 
 period of three months thereafter ; and at the time of the ti'ial, thirteen months 
 after the accident, he was still feeling some pain and inconvenience. Under 
 these circumstances, it was held that if such temporary confinement and pain 
 were the only consequences of the injury, a verdict of $5,000 should be regarded 
 as excessive. The proof, however, was conflicting as to whether the plaintiff 
 was injured in the membraneous covering of the spine, or merely in the muscu- 
 lar ligaments connected with it. There was evidence from which a jury might 
 conclude that the plaintiff would never entirely recover, the attending physician 
 and two others testifying that, in their opinion, any future imprudence or un- 
 usual exposure might lead to very serious, and even fatal, results. The verdict 
 was therefore permitted to stand.'' In another case of this character, $6,900 
 was deemed to be excessive damages where the injuries consisted of a variety 
 of bruises about the head and shoulders, — none of them being of a serious 
 character, — a scalp-wound which readily healed, and a shock to the nervous 
 system. The plaintiff, shortly after the accident, admitted that she was not 
 seriously injured, and commenced her avocation of teaching two or three 
 months afterwards.* 
 
 The court thought that a verdict of $11,000 should be reduced to $5,000 as 
 compensation for the following injuries: The plaintiff was somewhat injured 
 about the head, but more seriously upon the foot, a portion of which had to be 
 amputated. After the accident, the plaintiff became so seriously ill that his life 
 was despaired of. He remained at the station to which he was conveyed subse- 
 quent to the accident, for a period of three months. At the expiration of this 
 time the wounded limb was not entirely healed, and in this particular the plain- 
 tiff was crippled for life.* So, the court ordered the damages to be reduced 
 from a verdict of $6,000 to $4,000, where the plaintiff's leg was broken and 
 some flesh-wounds were received upon the head during a collision of trains. 
 
 1 New Orleans etc. R. Co. v. Statham, 42 s Sawyer v. Hannibal etc. R. Co., 37 Mo. 
 
 Miss. 607. 240. 
 
 - Pittsburgh etc. R. Co. v. Thompson, 56 ^ Collins v. Albany etc. R. Co., 12 Barb. 
 
 111.138. 492.
 
 DAMAGES QUANTUM OF. 
 
 583 
 
 Gettin"; on and off Train. 
 
 The plaintiff was confined to his house for about five months, and obliged to go 
 upon crutches for three or four months afterwards; and the injured limb, when 
 healed, was somewhat shorter than the other, though the muscles were well 
 developed and the plaintiff was restored to his wonted health.^ 
 
 A verdict of $5,000 damages was held to be excessive where the plaintiff lost 
 only one month's time in his business, and the injuries consisted of a straining 
 of the ligaments of a finger of the right hand, resulting in some loss of power 
 in the limb, some slight bruises, and a weakening of one lung, rendering the 
 plaintiff more liable to pulmonary attacks. - 
 
 In an action for the breaking of the plaintiff's arm, the jury awarded exces- 
 sive damages, which the trial court required the plaintiff to reduce by a remitti- 
 tur to §2,500. The Supreme Court of Illinois considered this to be a large 
 award for the injury in question, but was not prepared to say that the judgment 
 ought to be reversed on this account.' On the contrary, the Canadian Court of 
 Queen's Bench held that a new trial ought to be granted in a case where the 
 record showed that a verdict of $2,000 had been rendered for the breaking of 
 the plaintiff's right arm, upon the testimony of persons who were not physi- 
 cians. One witness testified that the plaintiff remained four weeks and a half at 
 his house after the accident, which occurred on the 8th of January; that he was 
 attended by two physicians; that he suffered greatly, and required attention 
 night and day; that the plaintiff's arm was in a sling a month after he left the 
 house ; that the injured arm was a great deal smaller than the other; that, in the 
 opinion of the witness, at the time of the trial the arm was useless. Another 
 witness testified that the plaintiff carried his arm in a sling until February ; that 
 the right arm was of little use ; that the plaintiff used his left arm because the 
 right arm was paralyzed.* 
 
 (7.) For Injury to Passenger getting on or off a Bailroad Train. — A pas- 
 senger paid his fare to a small station, which was a wood and water station 
 only, and the conductor agreed to put him off there. When the train got to 
 the place it did not stop, but slackened up to allow him to jump off; but the 
 passenger, being a heavy man, was afraid to get off, and went forward and told 
 the conductor, who angrily blamed him, and who again slackened the train, 
 whereupon he got off. In doing so he injured his ankle; and the jury, in an 
 action for damages against the railroad company, gave a verdict in his favor 
 for the sum of $500. It was held that the amount was not excessive.^ In 
 an action by a passenger against a railroad company, it appeared that the 
 plaintiff, a physician of thirty years' standing, while on the defendant's car at a 
 station where the train was waiting for the arrival of another train on a con- 
 necting road, and which the plaintiff intended to take to continue his journey, 
 liad occasion to step out of the car, and in doing so he fell into a ditch 
 or sewer nine or ten feet deep below the step of the car, and broke his leg 
 and was otherwise injured. The car was standing at or near the usual place of 
 receiving and putting off passengers ; it was at night ; there were no stationary 
 
 ' Clapp «. Hurison etc. R. Co., 19 Cari). jm. < Watson v. Xortheni K. Co., 24 Upper 
 
 2 TTiiion Paeillc R. Co. v. Hiiiul, 7 Kan. 3S0. Canada Q. B. 08. 
 
 3 Chicago etc. R. Co. v. Pomirom, .51 III. " Georgia etc. U. Co. v. SlcUurtly, 4.5 Ga. 
 8;3. See also Chicago etc. li. Co. »'. Hughes, 288. 
 
 Bi) 111. 170; Walker f. Erie K. Co., 6a Barb. -itiO.
 
 584 REMEDIES, PROCEDURE, AND DAMAGES. 
 
 Notes. 
 
 lights, and there were rocks, timbers, and oyster-shells in the bottom of the 
 ditch into which he fell. The plaintiff used due care and caution in going down 
 the car-steps, and, when he stepped off the last car-step, expected to put his 
 feet on the ground instead of stepping into the ditch, of which he had no knowl- 
 edge. The conductor of the defendant's train had known of the existence of the 
 ditch for three years ; it was afterwards filled up befoi'e the trial. The court 
 refused to disturb a verdict for the plaintiff for §10,000. ^ The plaintiff, ou 
 attempting to get on a train at midnight at the defendants' depot, fell through :i. 
 bridge which was under the control of the defendants, which was undergoing; 
 repairs and was through their negligence left uncovered. The injuries thu- 
 occasioned were of a permanent character, leaving him a cripple for life. 
 He had suffered pain and anguish, and been involved in large expenditure- 
 of money, but the evidence failed to disclose any wantonness or wilfulness on 
 the part of the company. A verdict of f 25,000 was regarded as grossly excessive, 
 and the judgment was reversed.'' It appeared in an action by the plaintiff, a 
 married lady, that she was a passenger on defendant's train, and on reaching 
 her destination attempted to get off, but the cars did not stop more than a 
 minute; that when the signal Avas given she started, with her child and some 
 bundles, for the door, and meeting some persons coming on the cars she could 
 not immediately get down the steps ; that before she could get off, the cars were 
 in motion, and she jumped off, and fell on the platform and was injured. The 
 jury found a verdict for $4,000 damages, Avhich was reduced, on the suggestion 
 of tlus trial court, to $2,500. The court above refused to interfere, as the 
 amount of the judgment was satisfactory, after the remittitur, to the judge who 
 tried the case.^ Where the plaintiff, iu order to get on a train, had to cross ove]' 
 a railroad track at night at a place where the track was usually crossed, there 
 being no way of reaching the depot except by crossing a track, was run over by 
 a train backing up which had no head-light and which did not ring the bell 
 nor sound its whistle to give warning of its approach, and his foot crushed so 
 that his leg had to be amputated, a verdict for $8,000 damages, although thought 
 by the appellate court to be large, was not disturbed, but the julu-iueut thereon 
 was afflrined.+ 
 
 (8.) Fur Injury to Passenger by Accident to Stage-Coach. — Where a stage-coach, 
 tlirough the negligence of the driver, fell over a ledge down a ravine, and a pas- 
 senger was very severely and dangerously injured, having his lower jaw broken 
 in three places, the upper jaw separated from its bony attachment, his right 
 slioulder dislocated and the right shoulder-blade broken, his skull fractured, his 
 face, mouth, and body bruised, contused, and wounded, and his injuries were of 
 so serious a character as to render him entirely insensible for a considerable 
 time, and to render his recovery doubtful, and were such as to require the 
 removal of portions of the lower jaw and to produce a great and permanent 
 disfigurement ; and it also appeared that before the accident the passenger, who 
 was a laborer by occupation, was a strong, healthy man, but that up to the time 
 of the trial, more than a year after the accident, lie had not acquired the ordinary 
 use of the lower jaw, his right shoulder and arm were stiff and weak, and his 
 
 I Montgomery etc. R. Co. v. Boring, 51 Ga. ' Lloyd v. Hannibal etc. R. Co., 53 Mo. 509. 
 
 682. ■» Whalen v. St. Louis etc. R. Co., 60 Mo. 
 
 ■ Chicago etc. R. Co. v. Fillmore, 57 111. 265. 323.
 
 DAMAGES QUANTUM OF. 585 
 
 Accidents to Stage-Coaches. 
 
 right hand partially paralyzed, being unable to perlorm any labor except with his 
 left hand, and the injuries were of such a character as to permanently impair 
 his capacity for laborious pursuits, — it was held that a verdict of $10,500 would 
 not be set aside. ^ In an action against a proprietor of a stage-coach for the neg- 
 ligence of the driver whereby the coach was overturned and the plaintiff was 
 injured, it appeared that the head of the plaintiff was severely cut, and one of 
 his legs badly broken, — the smaller bone protruding through his clothing and 
 boot. He was confined at a house near the place of the accident for six months, 
 during which time he suffered very severely, and for a part of the time was 
 occasionally delirious. At the time of the trial, which was -a year after the 
 occurrence, his leg was not entirely healed and was shortened; the ankle-joint 
 was swollen and stiff and he was obliged to use crutches, and the physician 
 who attended him expressed the opinion that the joint would continue to be 
 stiff, and he would be a cripple for life. He was also subjected to considerable 
 expense, having paid his physician's bill of $280, and to the man at whose house 
 he was confined, $154.12. The jury gave a verdict in his favor of $9,000, which 
 the court refused to set aside, and the court above afllrmed the judgment 
 thereon.''' 
 
 1 Boyce V. California Stage Co., 25 Cal. * Farish v. Reigle, 11 Gratt. 697. 
 
 460.
 
 INDEX. 
 
 ABATEMENT OF ACTIONS, 
 
 in suits against carriers, p. 546, 
 
 ABSENCE FEOM CONVEYANCE, 
 
 temporary absence of passenger from the conveyance does not sever the rela- 
 tion of carrier and passenger, p. 50. 
 
 ACCIDENT, (See Negligence.) 
 
 carrier not answerable for mere accident. Christie v. Origgs, p. 181. 
 
 ACCOMMODATIONS, 
 
 duty of railway companies to provide reasonable accommodations for passen- 
 gers at their stations. McDonald v. Chicago etc. R. Co., p. 93. 
 
 duty of carriers of passengers by sea as to the accommodations of passengers, 
 p. 468. 
 
 ACTIONS, (See Pleading; Procedure.) 
 
 ACTIONS EX DELICTO, {See Procedure.) 
 
 ADMIRALTY, 
 
 courts of, have jurisdiction over torts of passengers upon the high seas. 
 Chamberlain v. Chandler, p. 459. 
 
 over contracts for the carriage of passengers by sea. p. 467. 
 and upon other navigable waters, pp. 543, 544. 
 
 ADVERTISEMENT, [See Time-Table.) 
 
 ALLEGATA ET PROBATA, 
 
 variance between pleading and proof in actions against carriers, pp. 554-556. 
 
 ARM OUT OF WINDOW, 
 
 whether riding on a railway car with arm out of window is contributory negli- 
 gence, p. 257. 
 
 ASSAULTS UPON PASSENGERS, 
 
 by other passengers ; liability of the carrier for. pp. 303-305. 
 liability of carriers for assault upon passengers by their servants, pp. 352-377. 
 this liability arises out of the contract of carriage, but does not depend 
 upon whether the servant was acting within the scope of his employ- 
 ment or not. Pendleton v. Kinsley, p. 362. 
 the carrier liable for the misconduct of his employee, whether arising 
 from malice or neglect. Ibid. 
 
 no defence that the carrier did not authorize the acts of his 
 employee. Ibid. 
 whether the carrier is liable for the wanton and malicious trespasses of 
 his servants, p. 363. 
 
 ^587)
 
 588 INDEX. 
 
 ASSAULTS UPON PASSENGERS — Continued. 
 
 cases which hold the carrier liable only when the servant was acting 
 within the scope of his emploj^ment. p. 366. 
 
 authority of the servants of the carrier to make arrests, p. 371. 
 
 risume of the circumstances which will justify an ejection of the pas- 
 senger, p. 375. 
 
 whether person may be ejected from a railroad train at other places 
 than at a station, p. 377. 
 
 English cases holding carriers not responsible for unauthorized assaults 
 by their servants, pp. 371-373. 
 
 quantum of damages for assaults upon passengers by carrier's servants, 
 p. 580. 
 
 ASSIGNMENT, 
 
 right of action for loss of baggage assignable, p. 538. 
 
 ASSUMPSIT, 
 
 lies against carrier for personal injuries. McCall v. Forsyth, p. 541 ; note, p. 
 544. 
 
 AXLE, {See Latent Defects.) 
 
 liability for an injury caused by the breaking of an axle on account of frost, 
 n. 216. 
 
 BAGGAGE, 
 
 of passengers by water; general rule in respect to. p. 471. 
 
 act of Congress limiting liability of ship-owner for loss of. p. 530. 
 
 duty of passenger in respect of, during transit, p. 530. 
 
 duty of passenger to claim, on arrival at port. p. 471. 
 
 passenger may require his baggage to be deposited in a suitable place while at 
 sea. p. 472. 
 
 carriers of passengers are responsible as common carriers for the baggage of 
 passengers. Hollister v. Nowlen, p. 489 ; note, p. 520. 
 
 right of carrier to extra compensation for baggage of peculiar value. New 
 Fork etc. R. Co. v. Fraloff, p. 502. 
 
 fraud of passenger, in concealing among his baggage articles of great value, dis- 
 charges carrier. Id., p. 503. 
 
 in the absence of fraud, passenger not bound to disclose value of baggage. Id., 
 p. 503. 
 
 what is baggage. Id., p. 503. 
 
 whether a passenger has carried excess of articles in his baggage a question of 
 fact. Id., p. 503. 
 
 what is baggage a mixed question of law and fact. p. 510. 
 
 articles which cannot be considered baggage, p. 511. 
 
 articles which are comprehended in the term "baggage." p. 512. 
 
 custody of the baggage ; booking and checking, p. 513. 
 
 theft of baggage under the personal control of the passenger, p. 515. 
 
 articles received in another capacity than as a carrier, p. 519. 
 
 responsibility for extra baggage, p. 522. 
 
 baggage of gratuitous passengers, p. 524. 
 
 lien of the carrier upon the passenger's baggage for passage-money, p. 624. 
 
 liability of carrier who carries baggage only. p. 524.
 
 INDEX. 589 
 
 BAGGAGE — Continued. 
 
 contracts limiting the liability of the carrier for the loss of baggage. Hollis- 
 terv. Nowlen, p. 489; notes, pp. 471, 525. 
 notices limiting such liability, p. 526. 
 provision under this head of the English Railway and Canal Traffic Act. 
 
 p. 526. 
 what will constitute a sufficient notice, p. 526. 
 
 exception under the Railway and Canal Traffic Act in case of excursion 
 trains, p. 528. 
 regulations of the carrier in respect of baggage. HoUister v. Nowlen, p. 489 ; 
 New York etc. R. Co. v. Fraloff, p. 502 ; note, p. 529. 
 notice to the passenger of such regulations, p. 529. 
 liability of sleeping-car companies for the loss of baggage and valuables, p. 
 
 530. 
 duty of the carrier to deliver baggage safely, p. 532. 
 duty of the carrier to afford facilities for the delivery and storage of baggage 
 
 at destination, p. 534. 
 liability of the carrier where baggage is delivered upon a forged order, p. 536. 
 measure of damages in actions for loss of baggage, p. 536. 
 actions for loss of baggage ; procedure and evidence in. pp. 537-539. 
 parties to the action, p. 537. 
 form of the action, p. 538. 
 competency of the plaintiff as a witness to show the contents of the 
 
 baggage, p. 538. 
 burden of proof in such actions, p. 539. 
 declarations of the carrier's servants, p. 539. 
 
 BAGGAGE-CAR, 
 
 whether riding in the baggage-car of a passenger-train is contributory negli- 
 gence, p. 262. 
 
 BARKEEPER, 
 
 lessee of the bar on a steamboat, when deemed a passenger, p. 46. 
 
 BERTHS, 
 
 rights of passengers upon steamboats, inter se, as to berths, p. 474. 
 
 BOOKING, 
 
 booking baggage, p. 513. 
 
 BROKEN AXLE, {See Latent Defects.) 
 
 BROKEN RAIL, (See Latent Defects.) 
 
 railway carrier not liable for the breaking of a sound rail in consequence of 
 extreme frost, p. 220. 
 
 BROKEN WHEEL, {See Latent Defects.) 
 
 BURDEN OF PROOF. {See Evidence.) 
 
 CABIN PASSENGERS, 
 
 entitled to what accommodation and treatment, p. 469. 
 
 CARRIER OF PASSENGERS, 
 
 who is a common carrier of passengers, pp. 26-28. 
 
 street railway companies are carriers of passengers, p. 442.
 
 590 INDEX. 
 
 CAKREER OF 'PASS'E,l>iG'EKS— Continued. 
 
 dutj' of carrier to receive and carry passengers, pp. 26-30. 
 obligation to receive and carry, pp. 1-30. 
 
 when the relation of carrier and passenger subsists, pp. 81-52. 
 obligation to carry according to advertisement or contract, pp. 53-71. 
 obligation to furnish safe and convenient stations and approaches, pp. 72-110. 
 liability for negligence, pp. 111-242. 
 regulations of. pp. 306-351. 
 
 liability for assaults upon passengers by his servants, pp. 352-377. 
 liability for personal injuries limited by contract, pp. 878-402. 
 liability for consequential injuries to passenger where another's means of trans- 
 portation are used. pp. 403-418. 
 liability for damage to passenger through fault of connecting lines, pp. 419- 
 
 437. 
 Btreet-railroad companies. 438-447. 
 carrier of passengers by water, pp. 448-487. 
 liability of, in respect of passenger's baggage, pp. 448-539. 
 what will excuse the carrier from receiving and carrying, pp. 2-28. 
 
 want of room. p. 29. 
 
 non-payment of fare. p. 29. 
 
 that the passenger has been before rightfully expelled, pp. 22, 30. 
 
 CARRYING BEYOND DESTINATION, 
 
 quantum of damages allowed for; illustration, p. 581. 
 
 CASE, {See Pleading.) 
 
 CHARACTER, 
 
 when the character and circumstances of the plaintiflF are an element of dam- 
 age, p. 571. 
 
 CHECKING, 
 
 checking baggage, p. 513. 
 
 CIVIL-RIGHTS LAW, 
 
 provisions of, declaring all persons entitled to equal accommodations on public 
 conveyances, p. 347. 
 
 constitutionality of the act denied, p. 347. 
 views of Erskine, J., p. 348. 
 
 CLASSIFICATION OF PASSENGERS, 
 
 right of carrier to adopt regulations for the separation of passengers into 
 
 separate vehicles, pp. 345, 350. 
 classification according to sex. p. 345. 
 according to color, p. 346. 
 
 COLLISIONS OF VESSELS, 
 
 parties to actions in case of injuries to vessels from collisions, p. 475. 
 
 COLORED PERSONS, 
 
 right of carrier to exclude from the cabin of a steamboat. Day v. Owen, 
 
 p. 306. 
 power of carrier to separate colored persons from other passengers, p. 346. 
 quantum of damages for refusing to permit colored persons to ride in par- 
 ticular cars. p. 580. 
 
 COMMON CARRIER, {See Carrier.)
 
 INDEX. 591 
 
 CONCURRENT NEGLIGENCE, 
 
 of the carrier and a third person, injuring the passenger. (See Imputed Neo- 
 
 LIGENCE.) 
 
 of the carrier and a passenger, injuring another passenger. (See Imputed 
 
 Negligence.) 
 of the passenger and the carrier. {See Contributory Negligence.) 
 
 CONDUCT OF DEPENDANT, 
 
 when admissible in evidence, p. 558. 
 
 CONDUCT OF OTHER PASSENGERS, 
 
 whether admissible in evidence, p. 557. 
 
 CONDUCTORS, 
 
 of street-railway cars; duty of, to passengers when alighting, p. 443. 
 
 CONDUCTORS OP RAILWAY TRAINS, 
 
 how far passengers are excused in following the directions of conductors of 
 
 railway trains. Railroad Co. v. Jones, p. 248. 
 represent the corporation, p. 369. 
 discretion of, in expelling persons from the train, p. 369. 
 
 CONNECTING LINES. 
 
 obligation to carry a passenger who proposes to take passage with a rival con- 
 necting line. Bennett v. Dutton, p. 2. 
 discontinuance of trains on connecting line, and excuse for failing to carry 
 
 according to published time-table, p. 53. 
 liability for injuries to passengers where one carrier uses another's means of 
 transportation, pp. 403-418. 
 
 liability of one railroad company for an injury to a passenger upon 
 the track of a connecting line. Great Western R. Co. v. Blake, p. 
 403. 
 liability of a railway company for injury to their own passengers through 
 the negligence of another company using their track. McElroy v. 
 Nashua R, Corp., p. 409. 
 general statement of liability where one carrier makes use of another's 
 
 means of transportation, p. 412. 
 the carrier receiving the passenger is chargeable with negligence of the 
 
 company whose line is used. p. 412. 
 rule where one carrier uses the line of another by statutory authority. 
 
 p. 415. 
 parties to actions in such cases, p. 417. 
 
 application of the doctrine respondeat superior in such cases, p. 417. 
 the carrier who sells a ticket over a connecting line is liable for the default of 
 the owner of such line. Caadee v. Pennsylvania R. Co., p. 419. 
 
 a modified rule; the liability to be determined by the contract of trans- 
 portation. Quimby v. VanderbUt, p. 423. 
 liability of a carrier who makes a contract for tran-jportation over lines not his 
 
 own. p. 431. 
 doctrine that a through-ticket is a distinct contract of each carrier, p. 433. 
 
 liability of the carrier on whose line the loss or injury occurred, p. 434. 
 partnership of carriers, p. 4.36. 
 
 limitation of the carrier's liability by contract or notice for losses occur- 
 ring on other lines, p. 437.
 
 592 INDEX. 
 
 CONSIDERATION, 
 
 the confidence induced by undertaking any service for another, as to carrying 
 him without his paying fare, is a sufficient legal consideration to create a 
 duty in performing it. Philadelphia etc. R. Co. v. Derby, p. 31. 
 
 pecuniar}' consideration not necessarj' to create an obligation to carry safely. 
 Ibid. ; Steamboat New World v. King, p. 175. 
 
 negligence in persons exercising skill. Steamboat New World v. King, p. 175- 
 
 CONSTITUTIONAL LAW, {See Civil-Eights Law.) 
 
 statute of Louisiana prohibiting carriers from making discrimination of color, 
 unconstitutional, p. 346. 
 
 CONTRACT OF CARRIAGE, (^^ee Ticket; Excursion Ticket.) 
 
 liability of a carrier for failure to transport the passenger according to the 
 terms of the contract of carriage, p. 65. 
 
 failure of vessel to land and take on passengers, pp. 65, 66. 
 
 liability for carrying a passenger beyond his destination, p. 66. 
 
 obligation of passenger to ascertain what train will stop at his destination, p. 
 66. 
 
 obligation of carrier to furnish passenger with a seat. p. 67. 
 
 duty of carrier by water to convey passenger to the port to which he has con- 
 tracted to carry him. p. 465. 
 
 rules which apply in the construction of contracts for the carriage of passen- 
 gers by sea. p. 467. 
 
 CONTRACTOR, 
 
 negligence of contractors who construct or repair the carrier's vehicles, road- 
 bed, and other physical appliances, imputable to the carrier, pp. 220-222. 
 
 carrier liable for an injury to a passenger in consequence of one of its con- 
 tractors engaging in work near the track, p. 222. 
 
 CONTRACTS LIMITING LIABILITY, 
 
 contracts limiting the liability of carriers for personal injuries to passengers. 
 pp. 378-402. . ' 
 
 right of the carrier of passengers to stipulate against liability for personal 
 injuries. Railway Co. v. Lockwood, p. 378. 
 
 cannot stipulate against liability for negligence. Ibid. 
 such a stipulation in a drover's pass, void. Ibid. ; note, p. 400. 
 validity of contracts limiting the liability, of carriers to passengers 
 travelling upon free passes, p. 399. 
 
 what negligence is covered by such a release, p. 402. 
 contracts and notices limiting the liability of carriers for losses and injuries 
 
 happening upon connecting lines, p. 437. 
 power of carrier to limit liability for baggage by contract. Hollister v. 
 
 Nowlen, p. 489. 
 for loss of passengers' baggage, pp. 471, 525. 
 notice limiting such liability, p. 526. 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 passenger leaping from stage-coach under an impulse of fear produced by a 
 sudden peril, not chargeable with contributory negligence. Ingalls v. Bills, 
 p. 112 ; Stokes v. Saltonstall, p. 183 ; Jones v. Boyce, p. 240. 
 
 of passenger in attempting to board train at a station where a train does not 
 stop. p. 226.
 
 INDEX. 593 
 
 OONTKIBUTORY NEGLIGENCE — Continued. 
 
 passenger injured while upon the railway track, p. 233. 
 
 the doctrine of contributory negligence stated and applied to the carriage of 
 passengers. Morrissey v. Wiggins Ferry Co., p. 243. 
 
 the doctrine that there can be no recovery where a passenger is in the 
 
 least fault, denied. Ibid. 
 if the passenger's negligence was the remote and the carrier's negligence 
 
 the immediate cause of the accident, the passenger may recover. 
 
 Ibid. 
 
 whether, notwithstanding the imprudence of the passenger, the 
 carrier could have avoided the injur}', a question for the jury. 
 Ibid. 
 instances of contributory negligence on the part of the passenger, pp. 246, 
 257-270. 
 
 leaping from stage-coach which seems about to overturn. Jones v. 
 
 Boyce, p. 246 ; Stokes v. Saltonstall, p. 183 ; Ingalls v. Bills, p. 112. 
 riding on the pilot of a locomotive. Railroad Co, v. Jones, p. 248. 
 leaping from a railway train while in motion. Railway Co. v. Aspell, 
 
 p. 252. 
 riding on a railway train with arm out of window, pp. 257, 258. 
 riding upon the platform of a railway car. pp. 259-261. 
 riding upon the platform of a street-railway oar. p. 261. 
 riding in a baggage-car. p. 262. 
 standing in the passage-waj' of a car. p. 263. 
 leaning against the side door of an English railway car. p. 263. 
 injury while endeavoring to shut the door of an English railway car. 
 
 p. 263. 
 riding with hand upon the frame-work of the door of a railway car, and 
 
 injured by the door being shut. p. 264. 
 injury while attempting to pass from one car to another by the direction 
 
 of a servant of the company, p. 2')4. 
 drover riding on the top of the train, pp. 265, 266. 
 passenger standing under a suspended boat on a steamboat, p. 266. 
 rushing back into burning train to recover baggage, p. 266. 
 leaping off railway cars while in motion, pp. 227, 228, 266. 
 alighting at an improper place, pp. 232, 233. 
 running alongside a moving train and endeavoring to climb upon it. 
 
 p. 267. 
 leaping from a street car while in motion, pp. 268, 444. 
 leaving train in the night and walking into an open cattle-guard, p. 269. 
 falling into other dangerous places in leaving trains at night, p. 269. 
 leaving trains by an unusual and unprovided way. pp. 269, 270. 
 passing over railway track in leaving train, p. 269. 
 care exacted of passengers in Massachusetts while on the company's 
 
 track, p. 269. 
 getting upon a street car from the side upon which there is another 
 
 track, p. 444. 
 standing upon the front plat form of a street car. Wilton v. Middlesex 
 
 R. Co., p. 438; Burns v. Bellefoninine R. Co., p. 441 ; note, p. 444. 
 getting on and off street car by the way of the front platform, p. 445. 
 riding in a street car with arm out of window, p. 446. 
 
 38
 
 594 INDEX. 
 
 CONTRIBUTORY NEGLIGENCE — Continued. 
 
 pedesti'ian crossing over the platform of a street car when a car obstructs 
 
 the passage of street, p. 447. 
 attempting to crawl through a freight-train which blocks up the way. 
 p. 270. 
 contributory negligence of passengers laboring under disabilities, pp. 270-272. 
 duty of the carrier toward such passengers, pp. 270-272. 
 putting a lunatic off the train, who was subsequently killed by being run 
 
 over by another train, p. 271. 
 -degree of care due to passengers who are intoxicated, p. 271. 
 care required of passengers of defective eyesight, pp. 271, 272. 
 no excuse that the impaired faculties of the passenger materially con- 
 tributed to injuries received in consequence of the carrier's negligence, 
 p. 272. 
 
 CORPORATIONS, 
 
 measure of damages in case of, same as in case of persons, p. 570. 
 liable for exemplar}' damages, p. 575. 
 
 COUNTS, {See Pleading.) 
 
 COURT AND JURY, [See Law and Fact.) 
 
 DAMAGES, 
 
 damages recoverable for future pain and suffering. Curtis v. Rochester etc. R. 
 
 Co., p. 189. 
 measure of damages for expulsion of passenger from railway train. Chicago 
 
 etc. R. Co. V. Parks, p. 319. 
 measure of damages in actions for loss of baggage, p. 536. 
 the fair market value of the property, p. 536. 
 expenses incurred in the search, p. 537. 
 interest on the damages, p. 537. 
 Iowa statute imposing penalty of three dollars a day where traveller is de- 
 tained, p. 537. 
 difference in measure of damages between actions ex contractu and actions 
 
 ex delicto, p. 545. 
 how pleaded, p. 550. 
 
 special damages must be alleged, p. 550. 
 all damages, present and prospective, may be recovered, p. 564. 
 damages in case of permanent injury, p. 565. 
 computation of damages from life-tables, p. 565. 
 damages must be obvious, and not conjectural or speculative, p. 565. 
 enhancement of damages by the subsequent conduct of the party injured, p. 
 565. 
 
 as where a passenger is not taken on board a train, and walks to his des- 
 tination, p. 565. 
 whether sickness or other injuries incurred by the passenger in consequence of 
 not being carried to his destination, or being unlawfully put off the carrier's 
 vehicle, constitute an element of damages, pp. 566-670. 
 damages for expulsion from ship. p. 567. 
 damages for failure or refusal to carry, p. 568. 
 damages for delays in making transit, p. 569. 
 loss of customers and injuries to business, p. 568.
 
 INDEX. 595 
 
 DAMAGES — Continued. 
 
 damages for wrongful expulsion of passengers, pp. 561, 570. 
 
 damages for refusal to furnish cars for excursion parties, according to contract. 
 
 p. 570. 
 the same rules of damages applied to corporations as to individuals, p. 570. 
 elements of damage: the loss of time — inability to attend to business — pecu- 
 niary expenses — bodily pain — incurable hurt — personal inconvenience — 
 mental anguish, etc. pp. 570, 571. 
 wealth of the defendant, p. 571. 
 character and circumstances of the plaintiflf. p. 571. 
 disfigurement of the person, p. 571. 
 expenses of litigation, p. 571. 
 value of gratuitous nursing, p. 571. 
 damages which may be recovered by husband and wife jointly, p. 572. 
 
 which parent may recover for injury to child, p. 572. 
 circumstances mitigating the damages, p. 572. 
 exemplary damages may be awarded, when. p. 573. 
 
 when corporations are liable for. p. 575. 
 questions of law and questions of fact, touching exemplary damages, p. 576. 
 when judgment will be reversed on account of excessive damages, p. 576. 
 illustrations of verdicts for damages which have been allowed to stand, and 
 which have been set aside as excessive, pp. 677-585. 
 for wrongfully ejecting passengers, p. 577. 
 for removing a passenger from a train at a place not a regular station. 
 
 p. 579. 
 for refusing to admit colored passengers to ladies' car. p. 580. 
 for assaults upon passengers by the carrier's servants, p. 580. 
 for carrying passengers beyond destination, p. 581. 
 for injury to passengers in railroad accidents, p. 582. 
 for injury to passengers in getting on and off railroad trains, p. 583. 
 for injury to passengers by accidents to stage-coaches, p. 584. 
 reduced from $4,000 to $50, for putting ashore a passenger who came 
 on board to go to a city from whence he had been exiled by a vigi- 
 lance committee. Pearson v. Duane, p. 17. 
 
 DEATH, 
 
 pleading under statutes giving a right of action for damages resulting in death, 
 p. 549. 
 
 DECLARATIONS, {See Evidence.) 
 
 DEGREE OP CAKE, {See Negligence.) 
 
 DELIVERY, 
 
 what constitutes a delivery of baggage to the carrier, p. 514. 
 
 duty of carrier to deliver baggage safely, p. 532. 
 
 what constitutes a delivery of baggage by the carrier, p. 533. 
 
 delivery to the passenger's agent, p. 533. 
 
 what constitutes arrival at destination, p. 533. 
 
 liability of the carrier when the baggage is carried beyond destination, p. 683. 
 
 effect of delivery and redelivery for safe-keeping, p. 534. 
 
 duty of carrier to afford facilities for delivery and storage, p. 534. 
 
 duty of passenger to receive his baggage at destination, p. 534. 
 
 liability of carrier for unclaimed baggage, p. 535.
 
 596 INDEX. 
 
 DELIVERY — Continued. 
 
 what is reasonable time for removal of baggage, p. 535. 
 
 within what time the passenger must claim his baggage, p. 536. 
 
 what, if a train arrives on Sunday, p. 536. 
 
 circumstances excusing the passenger from claiming baggage, p. 536. 
 
 delivery of baggage on a forged order, p. 536. 
 
 DEMURREll TO EVIDENCE, 
 practice under, p. 563. 
 
 DEPOTS AND GROUNDS, {See Railway Stations.) 
 
 DISFIGUREMENT OF PERSON, 
 damages for. p. 571. 
 
 DROVER'S PASS, 
 
 rights and immunities of persons riding upon drover's pass. p. 44. 
 
 drovers travelling on passes are passengers for hire. Railroad Co. v. Loek- 
 
 wood, p. 878; but see note, pp. 400, 401. 
 a condition in such a pass that the holder of it waives all claims for damages 
 
 for personal injuries, is void. p. 378. 
 
 DRUNKENNESS, 
 
 stage proprietor furnishing a known drunkard for a driver is liable for exem- 
 plary damages, p. 239. 
 
 DRUNKEN PERSONS, 
 
 railway company not bound to receive and carry. Vinton v. Middlesex R. Co., 
 
 p. 6. 
 duty of carrier in case of having on board drunken, disorderly, and dangerous 
 
 persons, p. 302. 
 
 EMPLOYEES OF CARRIER, 
 
 distinction between the degree of care which a carrier owes his servants and 
 
 that which he owes his passenger, p. 46. 
 when deemed a passenger and when not. pp. 46, 47. 
 
 servants of carrier riding from home to their work, and from their work home, 
 are not deemed passengers, pp. 46^8. 
 
 otherwise in case of a carpenter employed in erecting a bridge, pp. 48, 
 49. 
 emploj'ee travelling on his own business is a passenger, p. 49. 
 injured while riding on the pilot of the locomotive cannot recover damsigea of 
 the company. Railroad Co. v. Jones, p. 248. 
 
 EMPLOYEE'S PASS, 
 
 admissibility of, as evidence, p. 51. 
 
 EQUALITY, 
 
 of passengers in respect to accommodations, pp. 345-350. 
 
 EVIDENCE, 
 
 burden of proof under act of Congress relating to vessels propelled by steam. 
 
 Steamboat New World v. King, p. 175. 
 breaking of carrier's vehicle priniQ, facie evidence of negligence. Christie v. 
 
 Griggs, p. 181. 
 presumption of negligence from the overturning of the carrier's vehicle, p. 
 
 183.
 
 INDEX. 597 
 
 EVIDENCE — Continued. 
 
 the mere fact that an accident has happened to the carrier's vehicle, without 
 more, held not primd facie evidence of negligence. Cu7-tis v. Rochester etc. 
 R. Co., p. 188. 
 
 the accident must he of such a nature that it was the dujy of the carrier 
 to guard against it. Ibid. 
 
 as where a railway train runs off the track. Ibid. 
 competency of plaintiff to show contents of packages of lost baggage, p. 538. 
 burden of proof in such actions, p. 539. 
 declarations of the carrier's servants in such action, p. 558. 
 points of evidence in actions against carriers, p. 562. 
 
 presumptions— ;5ri»ia facie proof of negligence, pp. 209-214, 556. 
 
 want of skill in the carrier's servant, p. 556. 
 
 declarations of the plaintiff to his physician, p. 557. 
 
 declarations made at the time of the accident, p. 557. 
 
 conduct of other passengers, p. 557. 
 
 conduct of the defendant, p. 558. 
 
 statements of the defendant's servants, p. 558. 
 
 where the servant is the managing agent, or vice-principal, p. 
 559. 
 testimony of experts, p. 559. 
 opinions of non-experts, p. 560. 
 other matters, p. 560. 
 
 EXCESSIVE DAJMAGES, 
 
 when appellate courts will reverse judgments on account of. p. 576. 
 
 EXCESSIVE FORCE, 
 
 carrier liable where his servant, in executing his duty, uses excessive force, pp. 
 378, 374. 
 
 EXCUESION TICKET, 
 
 liability of a railway company for failing to bring back a passenger according 
 to the terms of an excursion ticket Hawcroft v. G-reat Northern, R. Co., p. 
 59. 
 
 EXCURSION TRAINS, 
 
 liabilitj' of railway companies for loss of baggage on excursion trains, p. 528. 
 power to limit such liability by notice, p. 528. ^ 
 
 EXEMPLARY DAMAGES, {See Damages.) 
 
 EXPENSES OF LITIGATION, 
 
 whether an element of damages, p. 571. 
 
 EXPERTS, 
 
 testimony of, in actions against carriers, p. 559. 
 
 EXPRESS MESSENGER, 
 
 injury to person about becoming express messenger, "learning the run." p. 
 45. 
 
 EXPULSION OF PASSENGER, 
 
 circumstances may exist which will not warrant the expulsion of a passenger 
 after he has been received, although they would haVe warranted a refusal to 
 receive and carry him. Fearson v. Duane, p. 17 ; note, p. 30.
 
 598 INDEX. 
 
 EXPULSION OF VASSENQi:^ — Continued. 
 
 carrier not bound to receive a passenger who has already been rightfully- 
 expelled. O 'BHen v. Boston etc. R. Co., p. 22. 
 prohibited by statute in Illinois, except at regular stopping-places, p. 319. 
 
 measure of damages where a person is expelled between stations, p. 319. 
 resume of circumstances justifying the expulsion of passenger from carrier's 
 
 vehicles, p. 375. 
 circumstances justifying the expulsion of passengers from railway trains, p. 
 
 377. 
 expulsion of the passenger for refusal to pay fare. p. 340. 
 discrimination between the price of tickets purchased at the company's oflSce 
 and rate of fare paid upon the train, p. 341. 
 
 statute of New York prohibiting railway companies from exacting greater 
 fare than that allowed by law. p. 342. 
 regulations restraining the transportation of passengers upon freight-trains. 
 p. 343. 
 
 who are to be deemed such passengers, p. 344. 
 classification of passengers, pp. 345-350. 
 according to sex. p. 345. 
 according to color, p. 346. 
 exclusion of runners from carrier's vehicles and premises, p. 850. 
 expulsion from street-railway cars while in motion, p. 443. 
 passenger may not be expelled from vessel after it has put out to sea. p. 465. 
 quantum of damages for. pp. 577-579. 
 
 where the expulsion is at a place not a regular station, p. 579. 
 
 EXTEA BAGGAGE, 
 
 responsibility of carrier for. p. 522. 
 
 EXTEA COMPENSATION, 
 
 carrier may demand, for baggage of excessive value. New York etc. R. Co. v. 
 Fraloff, p. 502. 
 
 EXTEAOEDINAEY CAEE, 
 
 a carrier of passengers i^ bound to extraordinary care for the safety of his pas- 
 sengers, pp. 200-205. 
 rule of extraordinary care applies only to injuries during the transit, and not 
 
 to defects in the carrier's depots and grounds, p. 209. 
 it does not apply to visible defects in the carrier's means of transportation. 
 p. 212. 
 
 nor where the occasion was, in whole or in part, some active movement 
 
 of the passenger, p. 214. 
 nor where it grew out of something wholly disconnected with the car- 
 rier's business, p. 214. 
 
 FOEEIGN ADMINISTEATOE, 
 
 when, may sue carrier in domestic tribunals, p. 547. 
 
 FORM OF ACTION, (See Procbdurb.) 
 
 FEAUD, 
 
 of passenger in concealing in his baggage articles of great value, discharges 
 liability of carrier, p. 503.
 
 INDEX. 599 
 
 FREE PASSENGERS, 
 
 passengers riding free with the carrier's consent, entitled to the same measure 
 
 of care as pajnng passengers. Philadelphia etc. R. Go. v. Derby, p. 31. 
 carrier liable to, for injury through culpable negligence or want of skill. Nol- 
 
 ton V. Western R. Corp., p. 37. 
 when entitled to the same measure of care as passengers for hire, and when 
 
 not. pp. 43-45. 
 proprietor of a steamboat liable for the negligent injury of a steamboatman 
 
 who, according to a custom, was permitted to ride on a boat without paying 
 
 fare. Steamboat New World v. King, p. 176. 
 validity of contracts limiting the liability of carriers to passengers travelling 
 
 upon free passes, p. 399. 
 liability of carrier for loss of baggage of. p. 524. 
 
 FREIGHT-TRAINS, 
 
 degree of care required in the transportation of passengers on freight-trains. 
 p. 234. 
 
 conveniences on such trains, p. 234. 
 
 means of getting on and off such trains, p. 234. 
 
 passengers upon, not presumed to have knowledge of regulations forbidding 
 their presence there. Dunn v. Grand Trunk R. Co., p. 328. 
 
 receiving passenger on such train and collecting first-class passenger fare of 
 him makes the carrier liable to him the same as though it were a passenger- 
 train. Ibid. 
 
 regulation that passengers coming upon, must first procure tickets, p. 343. 
 
 who are to be regarded as passengers upon. p. 344. 
 
 expulsion of passengers from, a ground of punitive damages, p. 344. 
 
 FROST, 
 
 liability for an injury caused by the breaking of an axle on account of frost. 
 
 p. 216. 
 railway company not liable for the breaking of a sound rail in consequence of 
 
 extreme cold. p. 220. 
 
 GAMBLERS, 
 
 no obligation to receive and carry a gambler who seeks to take passage for the 
 purpose of plying his vocation. Thurston v. Union Pacific R. Co., p. 10. 
 
 GETTING ON AND OFF TRAINS, 
 
 quantum of damages allowed for injuries in. p. 683. 
 
 {See also Contributory Negligence.) 
 
 GOLD AND SILVER, 
 
 liability of carrier for loss of money transported as baggage, p. 611. 
 
 HIGH SEAS, {See Passengers by Water.) 
 
 HUSBAND AND WIFE, 
 
 who may sue for loss of wife's paraphernalia, p. 537. 
 
 action by husband for loss of wife's baggage, p. 647. 
 
 action by wife in her own name. p. 547. 
 
 IDENTITY OF CARRIER AND PASSENGER, {See Imputed Nkoligence.)
 
 600 INDEX. 
 
 IDENTITY OF CHILD WITH CUSTODIAN, {See Imputed Negligexce.) 
 IDENTITY OP LUNATIC WITH CUSTODIAN, {See Imputed Negligence.) 
 IDIOTS, (See NoN Sui Juris; Contributory Negligence.) 
 
 I.MPUTED NEGLIGENCE, 
 
 application of the doctrine of, in the carriage of passengers, pp. 273-305. 
 negligence of the manufacturer of the carrier's vehicles imputed to the carrier. 
 
 Hegeman v. Western R. Corp., p. 160. 
 application of the doctrine of imputed negligence in the carriage of passengers. 
 
 pp. 273-294. 
 that a passenger who is injured by the negligence of a third person is precluded 
 from recovering by the contributory negligence of his own carrier. Thoro- 
 good V. Bryan, p. 278. 
 
 this doctrine denied. Bennett v. New Jersey etc. B. Co., p. 281. 
 the doctrine of imputed negligence considered ; proper scope of the rule. p. 
 
 284. 
 the case of Thorogood v. Bryan doubted in subsequent English cases, p. 284. 
 and not followed in some of the cases, pp. 285, 286. 
 
 but subsequently reasserted, p. 287. 
 the American decisions on the subject conflicting, pp. 288-290. 
 effect of the negligence of a stranger concurring with negligence of the carrier, 
 
 to the injury of a passenger, p. 290. 
 when children and persons of unsound mind are passengers, the negligence of 
 
 their custodian is imputed to the passenger, pp. 291-294. 
 other cases illustrative of the rule. p. 294. 
 INJURIES TO PASSENGERS, 
 
 liability for injuries to passenger while getting on and off of vessel, p. 472. 
 
 INSPECTION, 
 
 carrier under a continuing duty of inspection and repair, p. 221, 
 
 INSURERS, {See also Negligence.) 
 
 carrier of passenger not answerable as an insurer. Readhead v. Midland R. 
 
 Co., p. 124; Stokes v. SaltonstaU, p. 183. 
 overruled cases holding carriers of passengers liable as insurers, considered. 
 
 p. 198. 
 carriers of passengers not warrantors of their vehicles and roads, but liable 
 only for negligence, p. 199. 
 
 they must use extraordinary care. pp. 200-205. 
 
 except in England, where they are held only to reasonable care. 
 p. 206. 
 
 but extraordinary care, in the view of some courts, means 
 no more than reasonable care applied to the circumstances 
 of the case. p. 207. 
 INTENTION, 
 
 whether the relation of carrier and passenger subsist is to a great extern a 
 question of intention on the part of the alleged passenger, p. 43. 
 
 INTOXICATION, 
 
 railroad company not bound to receive and carry drunken persons. VintoA 7. 
 Middlesex R. Co., p. 6. 
 
 JOINT AND SEVERAL LIABILITY. 
 
 of carriers for injuries to passengers, p. 545.
 
 INDEX. 601 
 
 JUEISDICTION, 
 
 courts of admiralty have jurisdiction over torts of passengers upon the high 
 
 seas. pp. 459, 644. 
 of suits against carriers, p. 543. 
 
 of IState courts in case of injury on a railroad leased by a foreign corpo- 
 ration, p. 543. 
 
 removal to the Federal courts in such cases, p. 543. 
 State jurisdiction over injuries happening upon inland waters, p. 543. 
 
 JURY, {See Law akd Fact.) 
 
 LADIES' CAR, 
 
 right of carrier to provide a separate car for ladies and their attendants, and to 
 exclude male passengers therefrom. Bass v. Chicago etc. JR. Co., p. 311; 
 note, p. 345. 
 
 what if there be no sitting room in other coaches, p. 345. 
 
 LATENT DEFECTS, 
 
 carrier liable for defects In his physical appliances, though latent, if the same 
 
 might have been discovered by the most careful and thorough inspection. 
 
 Ingalls v. BiUs, p. 112. 
 stage proprietor not liable for the breaking of an iron axletree from a defect 
 
 which cannot be discovered by an extraordinary examination. Ibid. 
 railway company not answerable for injury to passenger caused by the breaking 
 
 of a wheel in consequence of a secret air-bubble, which cannot be prevented 
 
 by any known m.eans of manufacture nor discovered by any known test. 
 
 Readhead v. Midland R. Co., p. 124. 
 liability of the carrier for accident caused by latent defects in his vehicle, 
 
 roadway, or other physical appliances, pp. 215-218. 
 
 LATEST IMPROVEMENTS, 
 
 •whether a carrier of passengers is bound to adopt the latest improvements, 
 pp. 160, 215. 
 
 LAW AND FACT, 
 
 it is a question for the jury whether a carrier has been negligent in not discov- 
 ering and adopting the latest improvements to promote the safety of his 
 passengers, p. 160. 
 
 whether a passenger has carried an excess of baggage, a question of fact. New 
 York etc. R. Co. v. Fraloff, p. 502. 
 
 what is baggage — a question of law and fact. p. 510. 
 
 what constitutes a delivery of baggage a question of fact. p. 514. 
 
 when the question of the carrier's negligence is a question of law for the court, 
 and when a question of fact for the jury. pp. 5ti2, 563. 
 
 province of court and jury a.s to the question of exemplary damages, p. 576. 
 
 LEAPING FROM STAGE, [See Contributory Negligence.) 
 
 whether the act of a passenger in leaping from a stage-coach while in motion 
 is contributory negligence. Jones v. Buyce, p. 246. 
 
 LEAPING FROM TRAIN, 
 
 whether contributory negligence in passenger to leap from train in motion, 
 pp. 226-229, 252.
 
 602 INDEX. 
 
 LESSEES, 
 
 iiability of railroad companies for injuries by their lessees in operating their 
 
 road. p. 418. 
 of bar on steamboats are entitled to the rights of passengers, p. 463. 
 
 LIEN, 
 
 of carrier upon baggage for payment of fare. p. 524. 
 
 LIFE-TABLES, 
 
 when damages are computed from. p. 565. 
 
 LORD CAMPBELL'S ACT, 
 
 pleading under statutes giving a right of action for injuries resulting in death, 
 p. 549. 
 
 LUNATICS, {See Non Stn Juris; Contributoky Negligence.) 
 
 MAIL AGENT, 
 
 not in a strict sense a passenger. Notion v. Western R. Corp., p. 37. But see 
 
 note, p. 45. 
 carrier not bound to award him the high degree of care which springs out of 
 
 the contract of carriage. Ibid. 
 
 but is liable to him if he is injured through gross negligence. Ibid. 
 
 ISIANUTACTURER, 
 
 negligence of the manufacturer of the carrier's appliances imputable to the 
 carrier, pp. 220-222. 
 
 MANUFACTURE OF VEHICLES. 
 
 carrier not answerable for secret defects in the manufacture of his vehicles 
 not preventable by any known means, nor discoverable by any known test. 
 Ingalls v. Bills, p. 112; Readhead v. Midland R. Co., p. 124; Hegeman v. 
 Western R. Corp., p. 160. 
 
 but carrier not exonerated from the fact that he purchased the vehicle 
 from an extensive and skilful manufacturer, if the delect could have 
 been discovered by the manufacturer by the application of any test 
 known to persons skilled in such business. Hegeman v. Western R. 
 Corp., p. 160. 
 
 MASTER AND SERVANT, 
 
 carrier not bound to the same care toward his servants as toward his passen- 
 gers, p. 46. 
 not liable for an injury to one servant from the negligence of another servant. 
 
 p. 46. 
 circumstances which constitute an employee of the carrier a passenger for the 
 
 time being, pp. 46-48. 
 the principle governing the liability of a master for wrongs done by his ser- 
 vant does not apply to assaults upon passengers by the servants of carriers. 
 Pendleton v. Kinsley, p. 352. 
 whether carriers are bound by the wanton and malicious trespass of their ser- 
 vants, p. 363. 
 
 views of Ryan, C. J. p. 363. 
 views of Shaw, C. J. p. 864. 
 
 conclusion drawn from the rule that the carrier is liable for the good 
 conduct even of strangers, p. 364.
 
 INDEX. 603 
 
 MASTER AND SEUV A^'ST — Continued. 
 views of Walton, J. p. 366. 
 recent doctrine in Massaclinsetts. p. 366. 
 
 cases which hold the carrier not liable unless the servant is acting within 
 the scope of his employment, pp. 366-371. 
 authority of the servants of carriers to make arrests, p. 371. 
 
 English cases holding railway companies not liable for unauthorized 
 arrests by their servants, pp. 371-373. 
 carrier liable where his servant, in executing his duties, uses excessive force. 
 
 pp. 373, 374. 
 whether master may sue carrier for injuries to his servant p. 546. 
 
 MASTERS OF VESSELS, 
 
 when obliged to receive and carry passengers beyond the seas. Benett v. 
 
 Peninsular etc. R. Co., p. 448. 
 summary and absolute authority of, during voyage, p. 459. 
 duty of, towards passengers during the voyage, and liability of, for violation of 
 
 such duty. Ibid. 
 is a common carrier, although making a voyage to a foreign country, p. 462. 
 has absolute control over passengers in every thing relating to order and safety. 
 
 p. 470. 
 
 MERCHANTS' SHIPPING ACT, 
 
 limitation of the carrier's liability by the English Merchants' Shipping Act. 
 p. 474. 
 
 MERE ACCIDENT, 
 
 carrier not answerable for mere accident. Christie v. Griggs, p. 181. 
 (See Negligence.) 
 
 MITIGATION OF DAMAGES, 
 
 circumstances which will be looked to in mitigation of damages, p. 572. 
 
 MONEY, 
 
 liability of carrier for loss of money transported as baggage, p. 511. 
 
 MONTE-MEN, 
 
 no obligation to receive and carry gamblers who seek to ply their vocation. 
 Thurston v. Union Pacific R. Co., p. 10. 
 MUTINY, 
 
 passenger endeavoring to incite, may bo put in irons, p. 470. 
 
 NEttLIGENCE, 
 
 the rule that there are three degrees of negligence, denied. Steamboat New 
 Worlil V. King, p. 17o. 
 
 negligence in employments which require skill. Ibid. 
 
 breaking of carrier's vehicle \z primai facie evidence of negligence. Christie v. 
 Giiggs, p. 181; Stokes v. Saltonatall, p. 183; Curtis v. Rochester etc. R. Co., 
 p. 188 ; note, pp. 209, 566. 
 
 what will rebut this presumption, p. 183. 
 
 liability of the carrier for injuries to his passenger tlirough his negligence, 
 pp. ill, 242. 
 
 degree of care imposed upon a carrier in respect of his vehicle and appli- 
 ance. Ingalls v. BiiU, p. 112; Readhead v. Midland R. Co., p. 124. 
 
 carrier not answerable for mere accident. Christie v. Griggs, p. 181.
 
 604 INDEX. 
 
 NEGJAQ'E^CE— Continued. 
 
 not an insurer. Stokes v. Saltonstnll, p. 183; note, p. 198. 
 not a warrantor of his vehicles and roads, but liable only for negligence, p. 199. 
 degree of care required of railway carriers of passengers. Hegeman v. 
 
 Western R. Corp., p. 160. 
 not answerable for breaking, through secret defects. Ingalls v. Bills, 
 
 p. 124. 
 responsible for the utmost care and skill in the manufacture of his 
 vehicles. Hegeman v. Western R. Corp., p. 160. 
 
 liable for the negligence of the manufacturer. Ibid. 
 no defence that the vehicle was purchased from an extensive manu- 
 facturer, of skill and reputation. Ibid. 
 whether the carrier has been guilty of negligence in not ascertain- 
 ing the utility of, and adopting, a recent improvement in vehicles, 
 designed to advance the safety of travellers, is a question for the 
 jury. Ibid. 
 carriers of passengers by steam held to the greatest possible degree 
 of diligence, and any negligence is deemed gross. Philadelphia 
 etc. R. Co. V. Derby, pp. 31, 34 ; Steamboat Neio World v. King, 
 p. 175. 
 carrier bound to use extraordinary care. pp. 200-205. 
 general expression of this doctrine, p. 200. 
 expressions in railway cases, p. 200. 
 expressions in stage-coach cases, p. 204. 
 expressions in steamboat cases, p. 205. 
 modified expression of this rule in American cases, p. 206. 
 the English rule that of reasonable care. p. 206. 
 American expressions of the English rule. p. 207. 
 limitations upon the rule of extraordinary care. p. 209. 
 presumption of negligence from the happening of the accident, p. 209. 
 exceptions to the rule that the happening of the accident is prlind facie 
 
 proof of negligence, pp. 212-214. 
 duty of the carrier to adopt the latest improvements, p. 215. 
 accidents from latent defects in vehicles, p. 215. 
 accidents from defects in the carrier's roadway, p. 218. 
 negligence of the manufacturer imputed to the carrier, p. 220. 
 the obligation of the carrier, how far affected by the statute, p. 222. 
 duties of railway carriers, p. 224. 
 
 must afford a reasonable time for passengers to get on and off. p. 
 
 225. 
 must not injure passengers in getting on and off by shunting trains 
 ; upon them. p. 226. 
 
 must announce the name of the station on arrival, p. 226. 
 
 must give passenger a reasonable opportunity to alight, p. 227. 
 
 must not let the train overshoot or fall short of the platform at 
 
 the station, p. 228. 
 effect of an invitation to alight, express or implied, p. 229. 
 injuries to passengers upon a railway track, p. 233. 
 degree of care required in the transportation of passengers on 
 freight-trains, p. 234. 
 duties of stage proprietors, pp. 235-242. 
 
 the law as laid down by Mr. .Justice Story, p. 235.
 
 INDEX. 605 
 
 NEGLIGENCE — Continued. 
 
 duty to furnish competent drivers, p. 238. 
 care and vigilance exacted of the driver, p. 239. 
 
 driver approaching dangerous place mast warn passengers. 
 
 p. 240. 
 carrier answerable for negligence of driver until passenger 
 is set down at his destination, p. 2il. 
 over-loading of carrier's vehicle, p. 242. 
 gross negligence a relative term, depending upon the circumstances of each 
 
 case. Nolton v. Weste^fi R. Corp., p. 37. 
 distinction between the degree of care which a carrier owes his servants and 
 
 that which he owes his passenger, p. 46. 
 carriers of passengers bound to extraordinary care, and liable for slight neglect. 
 
 p. 243. 
 carrier not bound to provide at all events against injuries to passengers by 
 
 other passengers, but must exercise the best efforts to that end. Pittsburgh 
 
 etc. R. Co. V. Hinds, 295; note, p. 301. 
 what negligence is covered by a condition in a free pass releasing liability for 
 
 personal injuries, p. 402. 
 the obligation to use due care continues where a carrier makes use of another 
 
 carrier's means of transportation. Great Western R. Co. v. Blake, p. 403. 
 railway carriers bound to the most exact care and diligence. McElroy v. 
 
 Nashua etc. R. Corp., p. 409. 
 railroad companies responsible for the careful management of a switch by 
 
 which another road connects with theirs, although such switch is under the 
 
 management of the servants of the other road. McElroy v. Nashua etc. R. 
 
 Corp., p. 409. 
 railroad company using the road of another companj' is chargeable with the 
 
 negligence of the latter company, p. 412. 
 what, if the road of the other company is used under statutory authority, p. 
 
 415. 
 carrier receiving passengers from coaches on another line responsible to them 
 
 for negligent injuries, p. 417. 
 liability of ship-owner for injuries to passengers while embarking or disem- 
 barking, p. 472. 
 duty to warn passengers of danger in such cases, p. 472. 
 not bound to provide means for embarking and disembarking except at such 
 
 times as he is ready to receive passengers, p. 473. 
 evidence of means of embarking and disembarking established on other vessels. 
 
 p. 473. 
 expert testimony as to a particular means established, p. 473. 
 right of passenger to disembark where the boat touches at a port temporarily. 
 
 p. 473. 
 presumptions of negligence in actions against carriers, pp. 181, 183, 188, 209, 
 
 556. 
 what amounts to primA facie proof of negligence in such cases, p. 556. 
 burden of proof in such cases, p. 556. 
 
 NEGROES, 
 
 quantum of damages for refusing to permit colored persons to ride in par- 
 ticular cars. p. 580.
 
 606 INDEX. 
 
 NEW JERSEY, 
 
 construotion of statute limiting liability of railway companies for baggage, 
 p. 628. 
 
 NEWSBOY, 
 
 boarding cars with acquiescence of carrier's servant, not a passenger, p. 46. 
 
 NON SUI JURIS, 
 
 contributory negligence of passengers under disabilities, pp. 270-272. 
 duties of carriers towards such passengers, pp. 270-272. 
 
 NOTICE, 
 
 limiting carrier's liability for loss of baggage, p. 526. 
 what will constitute a good notice, p. 526. 
 
 {See Contracts Limiting Liability.) 
 
 NAVIGABLE WATERS, 
 
 jurisdiction in case of injuries to passengers upon. p. 543. 
 {See Passengers by Water.) 
 
 OBLIGATION TO CARRY ACCORDING TO ADVERTISEMENT OR CON- 
 TRACT, pp. 52-71. 
 
 failure of railway company to transport according to advertised time-tables. 
 Denton v. Great Northern R. Co., p. 53. 
 . failure of a railway company to transport according to special contract. Haw- 
 croft V. Great Northejyi R. Co., p. 59. 
 
 railway ticket for one part of route not good for another part. Great Western 
 R. Co. V. Pocock, p. 63. 
 
 what a railway ticket is. p. 65. 
 
 failure to transport according to contract, p. 65. 
 
 carrying passenger beyond his destination, p. 66. 
 
 duty of passenger to ascertain what train will stop at his destination, p. 66. 
 
 duty of railway carrier to provide passengers with seats, p. 67. 
 
 duty of railway carrier to run trains on schedule-time. p. 67. 
 
 special contracts increasing carrier's liability, p. 68. 
 
 contracts to transport over another line. p. 69. 
 
 right of passenger to stop oiF and resume journey on the same ticket, p. 69. 
 
 OBLIGATION TO RECEIVE AND CARRY, pp. 1-30. 
 
 a general obligation to receive and carry. Bennett v. Button, p. 2 ; note, p. 28. 
 
 obligation to carry passenger who proposes to take passage by a rival line. 
 Ibid. 
 
 not bound to carry drunken persons. Vinton v. Middlesex R. Co., p. 6. 
 
 nor gamblers whose purpose it is to ply their vocation. Thurston v. Union 
 Pacific R. Co., p. 10. 
 
 nor drummers for a rival line. Jeneks v. Coleman, p. 11. 
 
 refusal of a ship-master to bring back a passenger exiled by a vigilance com- 
 mittee. Pearson v. Duane, p. 17. 
 
 quantum of damages in such a case. Ibid. 
 
 not bound to carry passenger who has been rightfully ejected from carrier's 
 vehicle. O 'Brien v. Boston etc. R. Co., p. 22. 
 
 carrier may make regulation for ejection of persona who refuse to pay fare. 
 Ibid,
 
 INDEX. 607 
 
 OBLIGATION TO KECEIVE AND CAB.RY — Continued. 
 
 want of room will excuse carrier from receiving passenger, p. 29. 
 
 payment or tender of fare a condition precedent to the right to be carried. 
 
 p. 29. 
 under certain circumstances, carrier may not eject passenger who has been 
 
 received, although he might have refused to carry him in the first instance. 
 
 p. 30. 
 in case of vessels making foreign voyages. Benett v. Peninsular etc. Co., p. 
 
 448 ; note, p. 464. 
 
 OPINIONS OF WITNESSES, 
 
 opinions of expert witnesses in actions against carriers, p. 559. 
 opinions of non-expert witnesses, p. 560. 
 
 OVERLOADING, 
 
 liability of stage proprietor for overloading, pp. 241, 242. 
 
 OVERRULED CASES, 
 
 overruled cases holding carriers of passengers liable as insurers, considered* 
 p. 198. 
 
 PAIN AND SUFFERING, 
 
 damages recoverable for future pain and suffering. Curtis v. Rochester etc. R. 
 Co., p. 189. 
 
 PARENT AND CHILD, 
 
 father may sue for loss of child's baggage, p. 5S7. 
 
 whether parent may sue carrier for injuries to child on account of loss of Mr- 
 vice, p. 546. 
 
 PARTICULARITY OF STATEMENT, (See Pleading.) 
 
 PARTIES TO ACTIONS, 
 
 in case of injuries to passengers from collision of vessels, p. 475. 
 in suits against carriers, p. 546. 
 
 master or parent, for loss of service of servant or child, p. 546. 
 
 foreign administrator, p. 547. 
 
 husband for wife. p. 547. 
 
 wife in her own name. p. 547. 
 
 assignee of cause of action, p. 547. 
 
 PARTNERSHIP, 
 
 in case of the partnership of carriers, the partners are jointly and severally 
 
 liable for torts committed upon passengers, p. 436. 
 an arrangement between connecting lines to carry passengers on through 
 tickets does not constitute a partnership within this rule. p. 436. 
 
 PASSAGE-MONEY, 
 
 when may be recovered back. p. 466. 
 
 PASSENGER, {See Free Passenger.) 
 
 contributory negligence of. pp. 243-272. 
 
 circumstances which create the relation of carrier and passenger, p. 42. 
 
 hailing an omnibus, p. 42. 
 
 checking baggage, p. 42.
 
 608 INDEX. 
 
 PASSENGER — Continued. 
 
 not necessary that the contract should be consummated by payment 
 
 of fare on entering the vehicle, pp. 43, 463. 
 persons going into waiting-room to become passengers are deemed such. 
 
 p. 43. 
 how far a question of intention, p. 43. 
 trespassers on carrier's vehicle not entitled to the same measure of care as 
 
 passengers, p. 43. 
 not necessary that money should be paid to constitute a passenger for hire. 
 p. 45. 
 
 illustrations : drovers attending cattle ; persons carrying on business on 
 
 carrier's vehicle, p. 45. 
 express-messengers on railwaj^ trains, p. 45. 
 person about to become express messenger, on board for the purpose 
 
 of "learning the run." pp. 45, 46. 
 lessee of the bar of a steamboat, pp. 46, 463. 
 boy on railway train, p. 46. 
 newsboy coming on train to sell papers, p. 46. 
 temporary absence of passenger from the conveyance does not sever the relation 
 
 of carrier and passenger, p. 50. 
 evidence as to who is a passenger, p. 51. 
 
 presumption that every one on the conveyance is a passenger, p. 51. 
 admissibility of employee's pass. p. 51. 
 evidence to show that a train is a passenger-train, p. 51. 
 person employed on a private car. p. 52. 
 slaves carried for hire. p. 52. 
 
 who is to be deemed a passenger on board a ship on the high seas. p. 463. 
 status of soldiers being transported on shipboard, p. 463. 
 person who has entered to talce passage, but who has not paid fare. pp. 43, 463. 
 duty of, in respect to the care of his baggage during the transit, p. 530. 
 
 PASSENGERS BY WATER, 
 
 the duties and obligations of carriers of passengers by water, p. 448-487. 
 
 duty of carriers of passengers making voyages beyond seas, to receive and 
 carry. Benett v. Peninsular etc. Co., p. 448. 
 
 jurisdiction of courts of admiralty over torts of passengers upon the high seas. 
 Chamberlain v. Chandler', p. 459 ; note, p. 468. 
 
 the summary and absolute authority of the masters of vessels. Ibid.; note, p. 
 470. 
 
 what conduct of masters of vessels towards passengers may be actionable. Ibid. 
 
 both the owner and master of a ship are common carriers, even in respect of 
 passengers carried to a foreign country, p. 462. 
 
 ■who is a passenger on board of a ship navigating the high seas. p. 463. 
 
 status of soldiers who are being transported on shipboard, p. 463. 
 
 status of the lessee of a bar on a steamboat, p. 463. 
 
 when the master of a vessel may refuse to receive passengers, p. 464. 
 
 when a passenger may be expelled from a vessel, p. 465. 
 
 when passage-money may be recovered back. p. 466. 
 
 construction of contracts for carriage of passengers by water, p. 467. 
 
 duty of carriers by water as to the accommodation and treatment of passen- 
 gers, p. 468. 
 
 authority of the master of a vessel over passengers, pp. 459, 470.
 
 INDEX. 609 
 
 PASSENGERS BY W XTER — Continued. 
 right of passengers to salvage, p. 470. 
 baggage of passengers by water, p. 471. 
 
 contract against liability for loss of. p. 471. 
 
 passenger must demand baggage within a reasonable time after arriving 
 ^ at port. p. 471. 
 
 at sea, may require baggage to be deposited in suitable place, p. 472. 
 injuries to passengers getting on and off vessel, p. 472. 
 duty of carrier to warn passengers of danger in disembarking, p. 472. 
 
 carrier not required to provide means for embarking, except when he is 
 receiving passengers, p. 473. 
 V evidence of means for embarking and disembarking used on other vessels, p. 
 473. 
 
 opinions of experts as to the feasibility of such means, p. 473. 
 rights of passengers inter se to berths on stf^amboats. p. 474. 
 duty of carrier as affected by quarantine, p. 474. 
 
 limitation of carrier's liability by the English Merchants' Shipping Act. p. 474. 
 parties to action in case of injury to passenger by collision of vessel, p. 475. 
 statutes of the United States affecting carriers of passengers by water, pp. 
 475-487. 
 
 historical sketch of these statutes, p. 475. 
 
 condensed statement of the provisions of the act of February 28, 1871. 
 
 p. 476. 
 condensed statement of the provisions of the act of March 3, 1855. p. 
 
 478. 
 review of cases construing the foregoing acts. p. 479. 
 act of March 2, 1819. p. 479. 
 act of March 3, 1855. p. 479. 
 acts of July 7, 1838, and August 30, 1852. p. 480. 
 act of July 4, 1864. p. 481. 
 actof July 25, 1866. p. 482. 
 act of February 28, 1871. p. 482. 
 limitation of carrier's liability by the act of March 3, 1851. p. 483. 
 scope of this act. p. 484. 
 its application to passenger-carriers in respect of a piissenger's 
 
 baggage, p. 485. 
 jurisdiction in certain cases under this act. p. 486. 
 
 PASSENGER-TRAIN, 
 
 evidence to show that a particular train is a passenger- train, p. 51. 
 
 PAYMENT OF FARE, {See Tickets.) 
 
 right of railway company to adopt regulations requiring conductors to expel 
 
 persons who refuse to pay their fare, and not to receive them on board after 
 
 they have been so expelled. O'Brien v. Boston etc. R. Co., p. 22. 
 payment of or readiness to pay fare a condition precedent to the right to be 
 
 carried, p. 29. 
 right of carrier to require passengers to purchase tickets before entering train, 
 
 and to charge the highest rate of fare where this is not done. Chicago etc. 
 
 R. Co. V. Parks, p. 319. 
 refusal to pay fare justifies expulsion of passenger, p. 340. 
 whether the carrier can exact a greater price where a ticket is not purchased 
 
 at the station, p. 341. 
 
 89
 
 610 INDEX. 
 
 PEDDLERS, 
 
 carrior not obliged to furnish facilities on his vehicles for traflBcking purpose-, 
 p. 351. 
 
 PERSONS ATTENDING PASSENGERS, 
 
 conflict of authority as to the dutj' which the carrier owes to persons attending 
 passengers arriving and departing, pp. 49, 50. 
 
 PLATFORM, 
 
 whether riding on a platform of a railway car is contributory negligence, p. 
 
 259. 
 injuries to passengers while riding upon the front platform of street-railway 
 
 cars. Wilton v. Middlesex R. Co., p. 438; Burns v. Beiiefontaitie R. Co., 
 
 p. 441 ; note, pp. 444-447. 
 
 PLEADING, 
 
 it is not sufScient to allege in a defensive plending that the vehicle which broke 
 was purchased from a competent manufacturer; the pleader must state that 
 the manufacturer himself was not guilty of negligence in making it. p. 
 221. 
 counts in the declaration in actions against carriers, p. 547. 
 particularity of statement in the declaration or complaint, p. 547. 
 in actions ex delicto, p. 547. 
 in actions ex contractu, p. 649. 
 allegations under statute giving a right of action where the damages resulted 
 
 in death, p. 549. 
 allegation of the carrier's duty. p. 550. 
 allegation of damages, p. 550. 
 
 special damages must be alleged, p. 550. 
 •whether the plaintiff must deny contributor}- negligence, pp. 551-553. ■ 
 particularity of statement in the defensive pleadings, p. 654. 
 variance between the allegations and proof, p. 554. 
 illustrations, p. 555. 
 
 POLICE DUTIES OF THT^ CARRIER, 
 
 duty to protect passengers by proper police regulations. Pittshurgh etc. R. Co. 
 V. Hinds, pp. 295-301. 
 
 duty of passengers to subordinate themselves to such regulations. Ibid. ; Bass 
 v. Chicago etc. R. Co.. p. 311. 
 
 carrier not bound to provide against injuries to passenger at all events, but 
 must exhaust every measure to furtlier the safety of passengers, p. 295. 
 
 caution required of carrier in maintaining order on his vehicle, p. 301. 
 
 duty in case of intoxicated, disorderly, and dangerous passengers, p. 302. 
 
 duty in case passengers use profane language and are guilty of other impro- 
 prieties, p. 303. 
 
 liability of carriers for injuries to passengers in consequence of failure to 
 execute proper police regulations, pp. 303-306. 
 
 PREMIUM, 
 
 for the carriage of baggage may be in proportion to its value, p. 489 ; New 
 Fork etc. R. Co. v. Fraloff, p. 503. 
 
 PRESUMPTION, {See Evidence.) 
 
 of negligence in actions against carriers, pp. 181, 183, 188, 209. 556.
 
 INDEX. 611 
 
 PRESUMPTIVE DAMAGES, 
 when recoverable, p. 564. 
 
 PRIMA FACIE EVIDENCE, {See Negligence.) 
 
 of negligence in actions against carriers, pp. 181, 183, 188, 209, 556. 
 
 PRIVATE CAR, 
 
 persons carried upon, not strictly passengers, p. 52. 
 
 PRIVATE INTERNATIONAL LAW, {See Jurisdiction.) 
 
 PROCEDURE, 
 
 parties to actions for loss of baggage, p. 537. ' 
 
 father may sue for child's baggage, p. 537. 
 whether husband sues for wife's baggage, p. 537. 
 assignee of claim for lost baggage may sue. p. 538. 
 form of action at common law for loss of baggage, p. 588. 
 foreign attachment does not lie in Pennsj-lvania in actions for loss of baggage. 
 
 p. 538. 
 actions against carriers ex contractu or ex delicto. McCall v. Forsyth, p. 541 ; 
 
 note, p. 544. 
 form of the action against carriers for injuries to passenger, trespass or case. 
 
 p. 545. 
 abatement and revival of actions, p. 546. 
 who may sue. p. 546. 
 
 master or parent, for loss of service of servant or child, p. 546. 
 foreign administrator, p. 547. 
 husband for wife. p. 547. 
 wife in her own name. p. 547. 
 assignee of the cause of action, p. 5'*7. 
 
 PROVINCE OP COURT AND JURY, (-See Law and Fact.) 
 
 PROXIMATE AND REMOTE CAUSE, 
 
 remote negligence of passenger no bar to a recovery for the carrier's negli- 
 gence, if the immediate cause of the accident. Morrissey v. Wiggins Ferry 
 Co., p. 248. 
 
 QUARANTINE, 
 
 obligations of carriers, how affected by quarantine regulations, p. 474. 
 
 RAILROAD ACCIDENTS, {See Negligence.) 
 
 quantum of damages allowed for injuries in. p. 582. 
 
 RAILWAY CARRIERS, 
 
 bound to use the greatest care, and liable for the slightest negligence, pp. 200, 
 
 204. 
 duty of railway carriers of passengers in general, p. 224. 
 duty to establish reasonable rules and regulations, p. 224. 
 duty not to overload their carriages, p. 224. 
 
 duty to afford passengers reasonable time to get on and off. pp. 226-227. 
 duty to announce the names of stations, p. 226. 
 
 duty to stop train at stations so as not to overshoot the platform, p. 228. 
 invitation to passenger to alight, express or implied, p. 229.
 
 612 INDEX. 
 
 RAILWAY CAURIERS— Continued. 
 
 what will constitute an implied invitation to alight, a source of controversy. 
 p. 230. 
 
 calling out the name of the station, p. 281. 
 guard opening the door. p. 231. 
 liability for injuring passengers, by the running of trains, who are obliged to 
 
 pass over several tracks in leaving the cars. p. 233. 
 degree of care required in the transportation of passengers on freight-trains. 
 p. 234. 
 
 conveniences on such trains, p. 234. 
 
 means of getting on and off such trains, p. 234. 
 
 RAILWAY COMPANY, 
 
 when not deemed a common carrier of passengers, p. 29. 
 
 circumstances justifying the expulsion of passengers from railway trains, p. 
 377. 
 
 RAILWAY CROSSING, 
 
 right of a pedestrian to cross from the platform of a street car when it is 
 obstructing the crossing, p. 447. 
 
 RAILWAY STATIONS, 
 
 injuries to passengers from defects or obstructions in and about railway stations. 
 pp. 72-110. 
 
 passenger opening door of the wrong room, and injured by falling down 
 
 a stairway. Toomey v. London etc. R. Co., p. 72. 
 passenger injured by falling over weighing-machine left on the platform. 
 
 Comtnaii v. Eastern Counties R. Co., p. 76. 
 passenger killed through the faulty construction of a bridge at the rail- 
 way station. Longmoj-e v. Great Western R. Co., p. 81. 
 passenger injured by falling over some hampers which obstructed the 
 path of egress from the train on a dark night. Nicholson v. Lan- 
 cashire etc. R. Co., p. 85. 
 passenger injured by falling down a slippery staircase at a railway station. 
 
 Grafter v. Metropolitan R. Co., p. 88. 
 
 duty of a railway company to provide reasonable accommodations for 
 
 its passengers at its stations. McDonald v. Chicago etc. R. Co., p. 93. 
 
 passenger injured by defective platform, in entering the cars at an unusual 
 
 place and in advance of time. Ibid. 
 
 duty of companies to keep all portions of their platform and approaches to 
 
 their cars in a safe condition. Ibid. 
 passenger injured by railway station-house being blown down by a storm. 
 Pittsburgh etc. R. Co. v. Brigham, p. 101. 
 
 the extent of the duty of the carrier to maintain safe station-houses, 
 
 platforms, and grounds, discussed, p. 104. 
 passenger bitten by a stray dog at a railway station no evidence of neg- 
 ligence, p. 105. 
 to whom the railwaj' company owes the duty of keeping its depot, 
 houses, and grounds in a safe condition, pp. 105, 106. 
 
 to persons having duties to perform in connection with the arrival 
 and departure of passengers, p. 105. 
 
 but not to mere trespassers and licensees, pp. 105, 106. 
 illustrations of negligence in this particular, p. 107.
 
 IJ^DEX. 613 
 
 RAILWAY STATIONS — Continued. 
 
 failure to keep its stations lighted at night, pp. 108, 109. 
 suffering snow and ice to accumulate on platforms, p. 110. 
 injuring passengers at stations by misplacing switch and shunting 
 a train upon the wrong track, p. 110. 
 
 REASONABLE CARE, 
 
 English doctrine of reasonable care applicable to carriers of passengers, p. 206. 
 
 American expressions of the same doctrine, p. 207. 
 illustrations of the English doctrine of reasonable care as applied to railway 
 carriers, pp. 217, 218. 
 
 REGULATIONS OF THE CARRIER. {See also Police Duties of the Car- 
 rier.) 
 
 right of the carrier to make reasonable rules and regulations for the accommo- 
 dation of passengers. Day v. Owen, p. 306. 
 
 reasonableness of such regulations a mixed question of law and fact. 
 Id., 307; Bans v. Chicago etc. R. Co., p. 311. 
 • how such regulations are pleaded. Ibid. 
 
 exclusion of colored passengers from the cabin of a steamboat. Day v. Owen, 
 
 p. 306. 
 reasonableness of a regulation reserving a separate car for ladies and their 
 
 attendants. Bass v. Chicago etc. R. Co., p. 811. 
 such a regulation cannot be enforced if there is not sufficient room for passen- 
 gers in other cars. Ibid. 
 discrimination between price of tickets and fares paid on train. Chicago etc. 
 R. Co. V. Parks, p. 319. 
 
 expulsion of passengers for refusal to comply with such a regulation, p. 
 319. 
 
 measure of damages for such expulsion, p. 319. 
 passengers upon freight-trains not presumed to have knowledge of regulations 
 
 forbidding their presence there. Dunn v. Grand Trunk R. Co., p. 328. 
 power of the carrier to establish regulations considered, p. 335. 
 regulations as to the exhibition and delivery of tickets, p. 336. 
 'passenger riding without ticket, or without a proper ticket, p. 337. 
 regulations as to the carriage of passenger's baggage. HoUister v. Nowlen, p. 
 489 ; New York etc. R. Co. v. Fraloff, pp. 502, 529. 
 notice to passengers of such regulations, p. 529. 
 such regulations must be reasonable, p. 530. 
 
 RELATION OF CARRIER AND PASSENGER, 
 
 when the relation of carrier and passenger subsists, pp. 31-52. 
 passengers riding free. Philadelphia etc. R. Co. v. Derby, pp. 31, 43 ; Steam- 
 boat New World' v. King, p. 176. 
 ■what constitutes gratuitous carriage, p. 45. 
 
 mail-agents upon railway trains. Nolton v. Western R. Corp., p. 37. 
 the relation of carrier and passenger arises, how. p. 42. 
 consummation of the contract not necessary, p. 43. 
 persons carrying on business on a carrier's vehicles or vessels, p. 45. 
 employees of the carrier, p. 46. 
 
 persons attending passengers arriving or departing, p. 49. 
 persons employed on a private car. p. 52. 
 elaves carried for hire. p. 52.
 
 614 INDEX. 
 
 RELATION OF CARRIER AND VASSENGEli,— Continued. 
 passengers temporarily absent from the conveyance, p. 50. 
 evidence as to who is a passenger, p. 51. 
 
 burden of proof in such cases, p. 51. ^ 
 
 admissibility of employee's pass. p. 51. 
 evidence to show that a train is a passenger-train, p. 51. 
 ceases when, in case of carriage on street railways, p. 446. 
 
 RELEASE, {See Contracts Limiting Liability.) 
 
 REMEDIES, PROCEDURE, AND DAMAGES, 
 
 considered, pp. 540-585. 
 
 RES G-EST^, {See Evidbnce. 
 
 RESPONDEAT SUPERIOR, {See Master and Servant.) 
 
 carrier responsible for negligence of servant, although acting against his 
 express orders. Philadelphia etc. R. Co. v. De)-by, p. 31. 
 
 carrier not liable to one servant for ah injury through the negligence of a fel- 
 low-servant, p. 46. 
 
 liability of carrier for the acts of his servants in respect of passenger's bag- 
 gage, p. 519. 
 
 RETURN OP PASSAGE-MONEY, 
 
 return of the passage-money after the passenger has been injured does not 
 affect the previous relation of carrier and passenger, p. 44. 
 
 RIVAL LINES, 
 
 obligation to carry a passenger who proposes to take passage with a rival con- 
 necting line. Bennett v. Dutton, p. 2. 
 no obligation to carry a drummer for a rival line. Jencks v. Coleman, p. 11. 
 
 ROADWAY, 
 
 railway carriers liable for defects in their roadway, pp. 218-220. 
 
 duty to widen embankments, p. 219. 
 
 to maintain a safe gate or cross-bar at crossings, p. 219. 
 
 to maintain a road-bed of sufficient strength to resist unusual storms, 
 p. 219. 
 
 but not storms of unprecedented violence, p. 219. 
 
 not liable for the breaking of a sound rail in consequence Oj. extraordi- 
 nary cold. p. 220. 
 
 RULES, {See Regulations of the Carrier.) 
 
 power of a railway company to make rules and regulations respecting the time, 
 mode, and place of entering its cars. McDonald v. Chicago etc. R. Co., p. 93. 
 
 RUNNERS AND DRUMMERS, 
 
 right of carrier to exclude, from his vehicles and premises, p. 350. 
 
 SALVAGE, 
 
 right of passengers to salvage, p. 470. 
 
 SAMPLES, 
 
 liability of carrier for loss of samples .transported as baggage, p. 511. 
 
 SCHEDULE-TIME, {See Time-Table.) 
 
 duty to give publicity to changes in time-tables, p. 68. 
 
 SECRET DEFECTS, {See Latent Defects.)
 
 INDEX. 615 
 
 SLAVES, 
 
 carried for hire, deemed passengers, p. 52. 
 
 SLEEPING-CAR COM'paNIES, 
 
 liability of, for loss of baggage and valuables, p. 530. 
 a sleeping-car not an inn. p. 531. 
 owners of, must keep a watch and exercise care while guests are asleep. 
 
 p. 531. 
 theft of passengers' baggage while those in charge of the car are absent 
 
 or asleep, p. 581. 
 liability of the proprietors of such cars extends to what baggage, p. 532. 
 
 SPECIAL DAMAGES, {See Damages.) 
 
 SPECULATIVE DAMAGES, {See Damages.) 
 
 STAGE-COACH, 
 
 passenger injured by leaping from stage-coach. Ingalls v. Bills, p. 112 ; Stokes 
 
 V. Saltonstall, p. 183. 
 contributor}^ negligence of passenger in leaping from stagti-cuuch. Jones v. 
 
 Boyce. p. 246. 
 stage-coach law. pp. 235-242. 
 quantum of damages allowed for injuries in stage accidents, p. 583. 
 
 STAGE PPvOPRIETOKS, 
 
 bound to use the utmost care and vigilance, pp. 204, 205. 
 
 duties and obligations of, in the carriage of passengers, pp. 235-242. 
 
 the law on this subject as laid down by Mr. Justice Story, pp. 235- 
 
 238. 
 duty to furnish competent drivers, p. 238. 
 
 furnishing a known drunkard for a driver, is liable for exemplary dam- 
 ages, p. 239. 
 responsible for negligence of driver employed to take the place of one 
 
 who is sick. p. 239. 
 care and faithfulness exacted of the driver, p. 239. 
 •where two courses are open, the driver is bound to adopt the one which 
 
 is the least perilous, p. 240. 
 driver bound to the strictest care and the most unremitting vigilance. 
 
 p. 240. 
 must warn passengers when approaching place of danger, p. 240. 
 obligation in this regard continues from the time the passenger is taken 
 
 on board till he is set down at the end of his journey, p. 241. 
 is not excused in negligently injuring passengers who persist in riding 
 
 on the outside, p. 241. 
 must not overload his vehicle, p. 242. 
 
 STATIONS AND APPROACHES, 
 
 obligation of the carrier to furnish safe and convenient stations and approaches. 
 
 pp. 72-110. 
 injuries to passengers from defects in carrier's railway stations and grounds. 
 Toomey v. London etc. li. Co., p. 72 ; (Jomtnan v. Eastern Counties R. Co., 
 p. 76; Longmore v. Great Western R. Co., p. 81; Nicholson v. Lancashire 
 etc. R. Co., p. 85; Grafter v. Metropolitan R. Co., p. 88; McDonald v. 
 Chicago etc. R. Co., p. 93; Pittsburgh etc. R. Co. v. Brigham, p. 101. 
 
 passenger opening wrong door and falling down stairs. Toomey v. Lon- 
 don etc. R. Co., p. 72.
 
 616 INDEX. 
 
 STATIONS AND AFFRO ACRES — Continued. 
 
 passenger falling over weighing-machine on platform. Comman v. East- 
 ern Counties R. Co., p. 76. 
 death of passenger from defective bridge at railway station. Longmore 
 
 V. Oreat Western R. Co., p. 81 
 egress from railway train obstructed, injuring passenger. Nicholson v. 
 
 Lancashire etc. R. Co., p. 85. 
 passenger injured upon slippery staircase at railway station. Grafter 
 V. Metropolitan R. Co., p. 88. 
 railway company bound to provide reasonable accommodations for passengers 
 
 at railway stations. McDonald v. Chicago etc. R. Co., p. 93. 
 may make rules as to passengers entering cars; effect of such rules. Ibid. 
 liability of such company for injury to a passenger through defective plat- 
 form. Ibid. 
 injury to a passenger in consequence of a railway station-house being blown 
 
 down by a storm. Pittsburgh etc. R. Co. v. Brigham, p. 101. 
 extent of the duty of railway companies to provide safe stations and approaches. 
 
 p. 104. 
 case of a passenger bitten by a stray dog at a railway station, p. 105. 
 to whom the carrier owes this duty. p. 105. 
 
 does not owe it to mere licensees, p. 106. 
 
 otherwise to persons coming to assist the departure of passengers. 
 p. 106. 
 liability where two railway companies own two adjoining stations, which 
 
 the passengers use indifferently, p. 106. 
 other illustrations of negligence in this particular, p. 107. 
 duty to keep stations lighted, p. 108. 
 injury to passenger from falling into an excavation on a dark night. 
 
 pp. 108, 109. 
 passenger injured by reason of snow and ice on platform, p. 110. 
 brakeman throwing burning stick of wood from the train and injuring 
 
 passenger, p. 110. 
 passenger running to escape unexpected train, and injured, p. 110. 
 
 STATUTES, 
 
 act of Congress relating to vessels propelled by steam ; burden of proof under. 
 
 p. 175. 
 statutes affecting the obligation of carriers considered, pp. 222-224. 
 compliance with the requirements of a statute designed to pi-omote the safety 
 
 of passengers will not alone exonerate the carrier, p. 222. 
 Federal statutes for the security of the lives of passengers on board of vessels 
 
 propelled in whole or in part by steam, pp. 222-224. 
 failure to comply with the requirements of a statute is negligence per se. p. 
 
 223. 
 limitation of the carrier's liability by the English Merchants' Shipping Act. 
 
 p 474. 
 statutes of the United States affecting carriers of passengers by water, p. 475. 
 historical sketch of such statutes, p. 475. 
 condensed statement of the provisions of the act of February 28, 1871. 
 
 p. 476. 
 condensed statement of the provisions of the act of March 3, 1855. p. 478. 
 review of the cases considering the foregoing acts. pp. 479-482. 
 act of March 2, 1819. p. 479.
 
 INDEX. 617 
 
 STATUTES — Continued. 
 
 act of March 3, 1855. p. 479. 
 act of July 7, 1838. p. 480. 
 act of August 30, 1852. p. 480. ' 
 act of July 4, 1864. p. 481. 
 act of July 25, 1866. p. 482. 
 act of February 28, 1871. p. 482. 
 limitation of carrier's liability by the act of March 3, 1851. pp. 483-487. 
 scope of this act. p. 484. 
 
 its application to passenger-carriers in respect to passengers' bag- 
 gage, p. 485. 
 jurisdiction under it in certain cases, p. 486. * 
 
 English Eailway and Canal Traffic Act. 526. 
 construction of New Jersey statutes limiting liability of railway company for 
 
 baggage, p. 528. 
 notices limiting liability for baggage under English Eailway and Canal Traffic 
 
 Act. p. 528. 
 act of Congress limiting liability of ship-owners for passengers' baggage, p. 
 
 530. 
 Iowa statute imposing penalty of three dollars a day where traveller is detained, 
 p. 537. 
 
 STEAM, [See Statutes.) 
 
 degree of care exacted of carriers who carry passengers by steam. Philadelphia 
 
 etc. R. Co. V. Derby, p. 31 ; Steamboat New World v. King, p. 175. 
 Federal statutes for the security of the lives of passengers on board of vessels 
 propelled in whole or in part by steam, pp. 222-224. 
 
 STEAMBOATS, {See Passengers by Water; Negligencb.) 
 
 proprietors of, bound to use every precaution which human skill, care, and 
 foresight can provide, p. 205. 
 
 STEERAGE-PASSENGERS, 
 
 entitled to what accommodations and treatment, p. 468. 
 
 STORMS, 
 
 railway company must maintain a road-bed of sufficient strength to resist 
 storms of unusual force, but not storms of unprecedented violence, pp. 
 219, 220. 
 
 STOWAWAY, 
 
 not entitled to the same measure of care as a passenger, p. 43. 
 
 STREET-RAILWAY COMPANIES, 
 
 liability of, for injuries to passengers, pp. 438-447. 
 
 whether it is within the scope of the employment of a driver to permit a 
 person to ride upon the platform without paying fare. Wilton v. 
 Middlesex R. Co., p. 438. 
 
 liability of the company where such a passenger is injured through 
 negligence. Ibid. 
 contributory negligence of the passenger in riding upon the front platform of 
 
 a car. Bums v. Bellefontaine R. Co., p. 441. 
 street-railroad companies are carriers of passengers, p. 442. 
 ejecting person from street car while in motion, p. 443. 
 duty of conductor toward passengers when alighting, p. 443.
 
 618 INDEX. 
 
 STKEET-RAILWAT C0MFA1<(IES— Continued. 
 
 duty of passenger to notify conductor or driver of intention to alight, p. 
 
 443, 
 getting on street car from the side upon which there is another track, p. 
 
 444. 
 passenger injured while standing upon the platform of a car. p. 444. 
 passenger getting on and off the car by way of the front platform, p. 445. 
 passenger injured by his arm projecting from the window, p. 446. 
 when the relation of carrier and passenger ceases, p. 446. 
 injury to pedestrians at street-crossings, p. 447. 
 passenger on street car not chargeable with negligence of the driver for injury 
 
 by colliding with a railway train. Bennett v. New Jersey/ R. etc. Co., 281. 
 cases holding company not liable for malicious conduct of driver in driving 
 
 against street passengers, p. 371. 
 
 SUNDAY, 
 
 carrier not bound to carry on Sunday, p. 29. 
 
 THEFT, 
 
 of baggage which is under the personal control of the passenger, p. 515. 
 
 THROUGH TICKETS, {See Connecting Lines.) 
 
 TICKET, {See Payment of Fake.) 
 
 a railway ticket for one part of a route does not entitle the holder to travel 
 over another part of the route for which the same fare is charged. Qreat 
 Western R. Co. v. Pocock, p. 63. 
 what a passage ticket is ; its legal effect, p. 65. 
 is a token rather than a contract. Quimby v. Vanderbilt, p. 423. 
 right of traveller to stop off and resume journey on the same ticket, p. 69. 
 tickets limited to a certain period of time. p. 70. 
 
 regulations of railway carriers as to the exhibition and delivery of tickets, p. 
 836. 
 
 English statutes upon this subject, p. 337. 
 passengers riding without a ticket, or with an improper ticket, p. 337. 
 if not purchased at the station, a carrier may exact a greater price for the 
 passage, p. 341. 
 
 but must provide passengers with a convenient opportunity for the pur- 
 chase of tickets, p. 341. 
 rule when the office of the carrier is closed, p. 342. 
 New York statute upon the subject p. 342. 
 
 TIMB-TABLE, 
 
 liability of a railway company for failing to transport a passenger according 
 to its advertised time-table. Denton v. Great Northern R. Co., p. 5o. 
 
 obligation of a railway company to run its trains according to its advertised 
 schedule-time. p. 67. 
 
 TRAIN-BOY, 
 
 when deemed a passenger, p. 46. 
 
 TREATMENT OF PASSENGERS, {See Accommodations.) 
 
 duty of carriers of passengers by water as to the treatment of their passengers, 
 p. 468.
 
 INDEX. 619 
 
 TRESPASS, {See Form of Action.) 
 
 TEESPASSERS, 
 
 trespassers on carrier's vehicle not entitled to the same measure of care as 
 passengers, p. 43. 
 
 VARIANCE, 
 
 between pleading and proof in actions against carriers, pp. 554-556. 
 
 VEHICLE AND ROADWAY, 
 
 liability of the carrier for injuries to passengers through defects in his vehicle 
 or roadway, pp. 215, 224. 
 
 VERDICTS, 
 
 for excessive damages not allowed to stand, p. 576. 
 illustrations, pp. 577-686. 
 
 VIGHiANCE COMMITTEE, 
 
 whether ship-master is bound to keep on board a person who has been exiled 
 by a vigilance committee, and who nevertheless seeks to reluro. Fearson 
 V. Duane, p. 17. 
 
 WANT OP ROOM, 
 
 want of room in the carrier's vehicle will generally excuse failure to carry, 
 p. 29. 
 
 exceptions to this. p. 29. 
 
 Want op skill, 
 
 in the carrier's servant, how proven, p. 556. 
 
 WAREHOUSEMAN, 
 
 when the responsibility of a carrier is that of a warehouseman, p. 619. 
 
 WARRANTORS, {See Insurers.) 
 
 WATER, {See Passengers by Water.) 
 
 WEALTH OP DEFENDANT, 
 
 not an element of damage, p. 571. 
 
 WITNESS, {See Evidbncb.)
 
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