WATERBURY V. NEW YORK C. & H. R. R. CO.
G71
tween the value of the land as he represented it to be, and the value of the land as you find it to be under the evidence. You may never come to that. I do not know that you will. But if yOll come to the question of damages,-as to how much the damages should be,-the rule is, you are to consider how much the property is worth; if it was just as Smith stated it to be, and what it was wortb, as yOll find it to be nnder all the testimony in the case.
WATERBURY
v.
NEW YORK
C. & H. R. R. Co. May 4, 1883.)
(Circuit Court, N. D. New York. 1.
CARRIER OF PASSENGERS-RIDHW ON ENGINE OF CATTLE Tn.UN-VIOLATION OF ORDEUS-QUESTION FOR JURY.
"Where a drover riding on an engine, in an action for negligence of the railroad company causing an injury to him, claims that he was riding on the engine by the consen t of thc engineer to look after his cattle, as was customary, and the defendant claims that it was contrary to orders for anybody to ride on an cngine, the question to be left to the jury to determine is whether the defendant had, notwithstanding its rules for the government of its employes, by its conduct held out its employes to the plaintiff as authorized under the circumstances to consent to his being carried on the train with his cattle.
2.
SAUE-PREsmIPTlOx-REBUTTAL BY CmcmlsTANcES.
The presumption of law is that persons riding upon trains of a railro[l,l carrier whieh are palpably not designed for the transportation of persons, are not la wfnlly there, and if they are permitted to he there hy the consent of the carrier's employes, the presumption is against the authority of the employes to bind the carrier by such consent. But such presumption may he overthro,,'n by special circumstances; and where the railroad company would derive a benelit from the presence of drovers upon its cattle trains, and may have allo,Yed its employes in charge of snch trains to invite or permit drovers to accompany their cattle, the presumption agaim:t a license to the person thns carried may be overthrown. S.UIE-DUTY TO OARRY 8AFELy-GRATUITIOUS CARRIAGE.
3.
The right which a passenger by railway has to be carried i'afely, does not depend on his having made a contract, hut the fact of his being there creates a duty on the part of the ('ompany to carry him safely. It suffices to enable him to maintain an action for negligence if he was being carried by the railro"d company voluntarily, although gratuitously, and as a mere matter of favor to him.
At Law.
)Iotion for new trial.
Parker '('Countryman, for plaintiff. Hale ((. Bulkley and Fral1k Loomis, for defendant. WALLACE, J. The plaintiff sued for personal injuries sustained, as he alleged, by the negligence of the defendant, and, haying recoyered a ,erdict, the defendant moyes for a new trial. The plaintiff "'as riding on !in engine of the defendant, when, in consequence of a placed switch, it was thrown from the track and he was injured: There was no eyidence on the trial of any express contract between the parties creating the relation of passenger and carrier, but it ap-
612
FEDERAL
peared that on various prior occasions the plaintiff and other drovers whose cattle were being transferred from West Albany to East Albany by the defendant, had been permitted by the employes of th,,; defendant to accompany their cattle by the same train,-sometimes on the cars of the cattle train, and sometimes on the engine. At times the trains were delayed between these points and the cattle required attention, and as no employe of the defendant was assigned to the duty of looking after the cattle, it seemed to be assumed between the employes of the defendant and the drovers that the latter should look after their own cattle. Upon the occasion in question the plaintiff and another drover got upon the engine, there being none but box cars on the train. The engineer inquired if they had cattle on the train, and bei.ng informed that such was the fact, made 110 objection to their riding upon the engine. It was shown for the defendant that its rules for the government of its employes forbade them from permitting any person to ride upon the engine. At the trial it was left to the jury to determine as questions of fact whether the plaintiff was a trespasser or a passenger; whether there was negligence on the part of the defendant; and whether there was contributory negligence on the part of the plaintiff. The jury were instructed in substance that if the plaintiff knew he was riding upon the engine in contravention of the rules of the defendant he was a trespasser, and -in that case the defendant was not responsible for the injury. They were also instructed that if they found he was riding upon the engine pursuant to an implied understanding between himself and the defendant that he should accompany his cattle in order to take care of them on the way, he was a passenger; and that if he was a passenger, and entitled to accommodations as such, the defendant was not at liberty to assert that he was guilty of negligence in riding upon the engine, if the defendant had provided no safer place for him to ride. A careful examination of the evidence shows quite satisfactorily that the case did not justify the assumption in any aspect of it that the plaintiff was entitled to be carried as a passenger, as an implied condition of the contract to carry his cattle. The most that can be fairly claimed for the plaintiff upon the evidence is that he was riding upon the engine permissively. If he was riding there with the consent of the defendant, express or implied, it is not material, so far as it affects the defendant's liability for negligence, whether he was there as a matter of right or a matter of favor,-as a passenger or a mere licensee. It suffices to enable him to maintain an action for negligence if he was being carried by the defendant voluntarily. If the defendant undertook to carry him, although gratuitously, and as a mere matter of favor to himself, it was obligated to exercise due care for his safety in performing the undertaking it had voluntarily assumed. Philadelphia, etc., R. Co. v. Derby, 14 How. 468; Steam-boat New Worlel v. King, 16 How. 469. The carrier does not, by consent-
V.
NEW
YORK O. & H.
n. n.
00.
673
ing to carry a person gratuitously, relieve himself of responsibility for negligence. When the assent to his riding free has been legally and properly given, the person carried is entitled to the same degree of care as if he paid his fare. Todd v. Old Colony, etc., B. Co. 3 Allen, 18. As is tersely stated by BLACKBURN, J., in Austin v. Great TVestern fly. Co. 15 Weekly Rep. 863, "the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the company to carry him safely." The real question in the case was lost sight of upon the trial. That question was whether the plaintiff was being carried upon the engine with the consent of the defendant, or only by the unauthorized permission or invitation of the defendant's employes. This question was not presented by the exceptions to the charge or by the instructions which the court was asked to give to the jury. But upon the theory on which the case was presented the jury must have found that the plaintiff had a right to be carried by the defendant as an implied condition of the contract for the transportation of his cattle. As the evidence does not warrant such a conclusion, and as the real question in the case has not been passed upon by the jury, there should be a new trial UpO.D the ground of misdirection, althongh the defendant's exceptions do not reach the error. It shonld have been left to the jury to determine, as a question of fact, whether the defendant had by its conduct held out its employes to the plaintiff as authorized, under the circumstances, to consent to his being carried on the train with his cattle. Undoubtedly the presumption of law is that persons riding upon trains of a railroad carrier, which are palpably not designed for the transportation of persons, are not lawfully there; and if they are permitted to be there by the consent of the carrier's employes, the presumption is against the authority of the employes to bind the carrier by such consent. In Eaton v. D., L. <t TV. R. Co. 57 N. Y. 382, it is held that the conductor of a freight train has no authority to consent to the carrying of a person upon a caboose attached to such train, but designed for the accommodation of employes, and in such case the presumption is that the person carried is not lawfully there. On the other hand, this presumption may be overthrown by the special circumstances, as in the case of Ohio d: .Miss. B. Co. v. Jluhling, 30 Ill. 9, where the plaintiff was riding on a construction train, and in the cases of Ryan v. Cumberland Valley B. Co. 23 Pa. St. 384, and Gill,hannon v. Stony Brook Co. 10 Cush. 228, where the plaintiff was rid. ing on a gravel train. So, in a case like the present, where the railroad carrier may derive some benefit from the presence of drovers upon its cattle trains, and may have allowed its employes in charge of such trains to invite or permit drovers to accompany their cattle, the presumption against v.17,no.9-43
.FEDERAL REPORTER.
a license to the person thus carried may be overthrown. It should have been left to the jury to determine, as a question of fact, whether, riotwithstanding its rules for the government of its employes, the defendant had not held them out to the plaintiff as having authority to consent to his being carried. If it should appear that its employes have been accnstomed to allow drovers to accompany their cattle on the cattle trains so generally and constantly that the officers of the company must have known it, the consent of the company may be predicated upon acquiescence and ratification . .. A new trial is granted. SCOPE OF THIS NOTE. The foregoing opinion touches upon three questions: (1) The duty of carriers of passengers to persons on their vehicles who have not paid their fare; (2) the liability of such carriers to peniOns on their vehicles who are injured while riding in a dangerous or improper place; and, as growing out of the second question, (3) whether, and, if at all, under what circumstances, the authorization or assent of the carrier's servants that the person injured should ride in a dangerous and improper place, will excuse such person and shift the risk upon the carrier. I shall not undertake to review all the decisions bearing upon these questions; that would go much beyond any limit of space wbich could be afforded me; but I shall render a l1lore substantial service to the readers of the FELERAL Bm'OItTER by presenting in detail the decisions-and they are quite numerous-which have been rendered on these questions since the publication of any text-book or treatise on the subject of carriers,-referring to prior decisions so far as lllay be convenient.
I. EKtent of Carrier's Duty to Non-Paying Passengers and Trespassers. § 1. CARnIER CE1tTAIN ABSOLUTE DUTIES· TOWARDS HIS PASSENGERS. It must be stated, as necessary to theunderstalllling of what folIowa, that a carrier of passengers for hire assumes certain absolute duties to them in respect of their safety. "Tithout entering into particulars, or attempting to state the various expressions which are used in defining these duties, it may be said that they come substantially to this: that the carrier is bound to provide himself With, and to use the safest means of transportation which are reasonably consistent Witil the practical conLluct of his business; that he is under a continuing duty of inspection and care, to the cnLl that these means of transportation be kept in safe condition with reference to the uses to which they are put; that he is bound to exercise care ,that the servants whom he employs to conduct his bbsiness are careful and competent; and that in ail these respect5, and in all other respects relating to the safety of his passengers, he must exercise the highest "degree of care is exercised by very cautious persons in the comluct of their business.! § 2. TIlE SA)!E DrTIES TOW-Alms GRATl:ITOUS PASSEXGEItS. (1) General Rule. In the of his business, the carrier must generally, if a person, and always, if a corporation, act through the instrumentality of others. 'Where he is not personally in' charge of his vehicle, some one must necessarily be there, to whom is committed the general duty of saying who shall and who shall not ride thereon.. This person, in respect of the decision of this question, is the alter ego of the carrier. On vessels, this persoll is the master or captain; on railway trains, the .conductor. .To lStory, Eailm. § 532 et seq.; Thomp. Carr. Pass. p. 200 et seq.
675
person who is invited or permitted to ride On the carrier's vehide without paying fare, either by the carrier himself or by this alter ego, the carrier owes the same measure of duty, in respect of carrying him safely, which he owes to passengers who have paid full fare'! (2) Comments on the Foregoing Rules. It !tas been well said that there are no degrees af negligence known to the law, where the subject of the bailment is human life; and where a carrier undertakes to convey passengers by the dangerous agency of steam, any negligence is culpable and may well be deemed gross. 2 The correct principlE' applicablE' to such cases is believed to be that " if a man gratuitously undertakes to do a thing to the best of his skill, when his situation or profession i" "uch as to imply skill, the omission of that skill .is imputed to him a" gross negligence." 3 This must, however, iJe said with the qualitication that the word" gross" in this sense is not used as expressing the antithesis of a certain defined llegree of care. It is e'ther u"ed in the sense of Cltlpa.ble or aetionabk or else it is a mere epithet. 4 (3) Rule not, A.tfede(l blJ the CireulIlstuuee that the Carrier's Ser1'nnt Adell against 11 is Orders. If a servant, charged by his master with a particular em!)Ioyment, does a particular act in the eourse of such employment, from which llalllages happen to a third person, the master will be liable to such per"on, although the servant had no orders to do the particular act, or al though, in doing it, he went against the mas'er's ex pres" orders, provilling the act was of such a nature that the master would be liable if done in conformity with his orders." In conformity with this principle, the simple fact that the sen'ant of a carrier dohtes his duty to his master and invite" a person to ride free, without collusion between him and such person to defraud the carrier, will not operate to deprive the person so riding of all action for llamages, if heis injurecl while so rilling tllrough the negligence of the carrier's servant." Thus, if the driver of a street railway car permits a trespassing chiltl to ride on the front platform, and the child is injured through his negligence, an action will lie against the company; 7 amI so where the eOlllluctor of a railway train allows a person to ride on the train without paying fare.' (4) Illustrations. Accordingly, where a bOlJ got upon aj'J'eif}ht train without the knowledge or consent of the conductor, but tlte conductor, after finding him there, suffered him to remain, it was held that he was entitled to the same protection as if he hall been a passenger and had paid his fareY So, although a railroad company lIIay not be a common carrier of passengers by hand WI', yet if it undertakes, for a purpose connectell with its business or otherwise, to transport a person from one poillt to another on its road by this means of con veyance, it assumes the duty of seeing that its track is reasonably safe for the purposes of snch a :ransit, and that the car is oper:tted with due care by those intrusted with its management. Acconlingly, where a detective, employed by a railroad company to ferret out thefts of propIPhibdelphia, etc., R. Co. Y. Derl)\", U How. 463; Steam-hoat Y. 16 Hm",469; \\"ilton v. n. Co. 107 :'ila!';,;. 10 . . ; Sherman v. Hannibal. etc., R. Co. 7:2 :\10. 103; Jaco'lus Y. St. Paul, etc., R. Co. 2:1 :'lImn. 12.); S. C 12;) .:\£a55. 130; Gr:1l!in v. St. PaUl, etc .· R. Co. 1-t r\. Rep. &31; Siegrist Y · ·.-\rnot, 1lI 2\10. API'. 19i; Pittsbun.!:h. etc., R. Co. Y. C:tldwel1. 74 Pa. St. 421; Y. Railro:ld Co. 1 He:ld, .x olton,". Railroad Co. 20 11. ]2;:;; Huse Y R'IH. road Co. 39 Iowa. Todd '". (:Id ('olon.r R. Co. 3 Allen. 113; S. C.7 Allen, 207; railroad Co. v. S3 HI. 4:23. 2 Ste:lm.bo:lt Y. King, 16 Ht)\\·. 3Shiells v. B!:lckhurn.1 H El. ];j-l; \\";l';:fln v. Brell, 1 )lees. &. \L 113; :\ollUrr v. R. Corp. l:i X. Y. 444; Siegrist v. Arnot, 10 :\10. App.
197.20'. jSiezrh;t v. Arnot, snpra. 5 Siegrist v, Arnot. 11) :\To. .-\pp. 197,201: Phila. delphb. etc" n. CO. Y. Dcrby.1-t HoW. -1u3j Garret7E'1l Y. Duenckel, ;)0 )10" 10-1; Sn.rtIeI' v. Han. nibal. etc., R. Co. G :110.413. 6Sieg}";st v. ,\rnot. supra; "'ilton Y. R:liJro.:l(1 Co 107 103; S. C. Pitts· burgh R. Co. Y. Caldwell,;-t P:t. St. -i:21; \\'ash· burn v. nailt'(J:I({ Co. 4 Head. C3'::'. -; \\"jjtull \-. R.ailroad Co. supra; Co. V. t ;dlt" ell, p I',t. 8 \\·-I"h1111rll Y. R"'iJroatl Co. 9... 1Jermall v. HallDibal, etc., It.CG. 7:L'lo. 62. 65.
676
FEDERAL REPORTER.
erty of the company, was sent, by direction of one of its agents, upon a hand car, from one station to another, for this purpose, and was injurel1 in consequence of the fact that he had, under the direction of the person in charge of the car, taken his position upon the car with his heels hanging down, and that some plank at a road-crossing had become warped so that they stuck up several inches from the level and came in contact with his heels as the car passed rapidly over them, it was held that there was a case to go to the jury. The court could not say, as a matter of law, that it was any negligence for the company to leave the plank warped and elevated as alleged; nul' that it was negligence for the plaintiff to ride upon the car in the manner in which he did, he having done so at the direction of the person in charge of the car. l 8. CARRIER OWES NO SPECIAL DUTY TO TRESPASSERS. (1) General Rule. The duties above enumerated arise only where the relation of carrier ll;nd passenger is deemed in law to exist. The carrier owes no such duties to trespassers upon his vehicles. He is not, in law, bound to furnish safe vehicles, and careful and skillful servants, to maintain a careful and contilluous inspection, and to exert in all these particulars the highest degree of care of very cautions persons, j01' them. If they get upon his vehicle without his authority, they take things as they find them, and assume the risk, without recourse against him, of any injnries which IIIay happen to them through any failure of the duties which he IIIay owe to those whu are passengers. 2 (2) Who are Trespassers within the Meaninr/ of this Rule. 'Ve have already seen 3 that those who ride upon the carrier's vehicle, with or without paying fare, with the authorization of the carrier himself, or of that particular servant of the carrier whose duty it is to determine who shall ride on his vehicles and who shall not,-as the master of his vessei, the conductor of his railway train, or the like,--is tleemed in law a paSSP,ltf/er, and not a trespasser. But, in the prosecution of his business, the carrier is frequently compelled to employ other servants, either suhordinate to the former or whose duties are entirely disconnected from those of the former,such as the engineer, fireman, and brakemen of a railway train, or the engineers, pilots, firemen, and COUllllon seamen employed on a vessel. These servants of the carrier have special and limited duties to perform; they are not in general command of his vehicle; they are not his alter eilD in the general conduct of the trip or voyage; they have no authoritv to say who shall or who shall not ride on the train or vessel; and their antlwriza'tion, invitation, or consent that a person who has paid no fare to the carrier shall ride on his vehicle, does not make such person rightfully there, and does not extend to him the rights of a passenger, or made him any the less a trespasser. 4 It may accordingly be laid down that those are trespassers, within the meaning of the foregoing rule, who have I Cooly v. Chico go, etc" R. Co. 53 Wis. 657. 2Toledo. etc., R. Co. v. Brooks, 81 Ill. 111; Chico go, etc., R. Co. v :llichie, 83111.427; Toledo, etc., R. Co. Y. 111.80; Siegri!"=t v. Arnot, 10 :110, App. 197, 201; Duck v, Allegheny Valley R. Co. 91 Pa. St. 45"; S. C. 2 Amer. & Eng U. Ca!'l 1. 3 Ante,! 2. etc., R. Co. v. Casey. 9 Bradw. 632, 639; ChicilgO, etc., H.eo. Y. l\lichie. 83 Ill. 427; Snyder v. Hannibal, etc., R. Co. 60 1\10. 412; Flower v. Penn. R. Co. Pa. St. 210; Sherman v. H:lnnib:l.l. etc., R. Co. 72 G2. The rule has been distinctly laid down In a late in Pennsylyania that a persoll riding on a railroatJ train, in violation of the regUlations of H.e company, with or '\\ithont the kno\'. ledge of the companY'!J train conductor, cannot reco'\"er damages for injuries received while so The ca.se wag that of a boy who was permitted by the conductor of a train to ride upon the train for the pnrpose of selling newspapers, in violation of the regulations of the company. He was killed by an accident. It was held that the company were not liable to pay on account arhis death. in an action broug:ht b,r his parents. Th& court said: u It is not like a allowed by the condul'tor to ride in a car G8 a paS8eng-er with .. ont fare. In that case there is a legallia.. bilitr to the company for the fare. This is the case of a mere tre!'passer.;\nd the company owed him no duty." Duck v. Allegheny Valley R. Co. 91 Po. St. S. C. 2 Amer. &; Eng. R. Cos. 1. This deCision is contrary to the general currenS or aothoritlr. Ante, § 2.
u77
not prrid their fare, and who are not on the carrier's vehicle either by his own invit,.tion, authorization, or consent, or by the invitation, authorization, or consent of his servant or agent in general charge of his vehicle; and, conversely, it may be atlded that those who are there merely by the authorization, invitation, or consent of other servants of the carrier are trespassers. (3) Illustrative Cases. (a) Locomotive Engineer no Authority to Invite Persons to Ride on the Train. Applying this principle, it has been held that, if a locomotive engineer invite a boy to ride upon the train, contrary to his duty to the compauy and in violation of his instructions, the mere fact that he is in charge of the engine which is propeliing the train at the time when he extends the invitation to the boy, willuot make the company responsible for any hurt which the boy may receive in consequence of accepting such invitation.! Third persons are not bound in all cases by the private instructions which a carrier may have given to his servants, but are entitled to presume that such servants, in the particular employment, have the same autllOrity which persons so employed usually have. "This," said the le"rnetl judge," is what is meant by their apparent authority. It is based upon those presumptions which the public have a right to draw from the usual course of business in matters of a similar nature; or, in other words, from general knowledge and observation of the powers and duties ordinarily intrusted to servants employed to fill the same station." 2 Applying this principle to the authority of a railway locomotive engineer, it has been held thaI: there is no implication, grOWing out of the well-known character of his employment, of any authority on his part to permit persons to ride upon the u'ain who are not in possession of regular passenger tickets, or passes. In so holding, the following language was used: "The system by which rail way companies conduct their business of carrying passengers and freight has now bem so long in operation, and is being conducted with snch a degree of uniformity, that its general features must lJe presumed to be known and understood by t.he pulJlic. Among these may be mentioned the division of freight and passenger business into two distinct departments, and the admission of pas.. sengers upon freight trains only under well-known limitations and restrictions. or their exclusion therefrom. Another the assignment to their respective and definite duties of the various employes on their trains. It is a fact with which the public must be presumed to be that the employes of an ordinary rail way train consist of the conductor, an engineer, and one or more brakemen, and that each of these is charged with his own peculiar duties and powers. The condnctor is the superior officer, and has general charge and control of the train, admitting and discharging passengers, collecting fares, and directly representing the company in its intercourse with the puolic. The duties of the engineer are suhordinate, and of an entirely different character. ,His place is on the engine, and nowhere else, and his duties are limited to running and managing his engine. W"ith the admission or discharge of passengers hfl has nothing to do, except so far as the proper management of his locomotive may furnish them the opportunity for getting on and off the train. No authority beyond this can be inferred from the usual conrse of his business on railway trains, or from the powers which locomotive engineers usually have and exercise." 3 The supreme court of the same state have expressed the same doctrine in the following language: .. The permission of the engine-driver, if gi ven, was not the permission of the company, as he had no power to give it. Had the conductor of the train given the permission, or, knowing he was upon the engine, suffered him there to remain, it might be considered the act of the company. The driver of the engine occupies a different and subordinate position. lie bas no right to say 1
Chicago, etc., R. Co. v. Casey. supra. 21cl. 610, per BAILEY. J.
lid. 640.
'678
who shall be upon the train, or to take cognizance of such as may be upon it. He has to look to his engine and keep it in order, and permit no one to ride upon it wit.hout the permission of his superior." 1 When, therefore, according to'the plaintiff's testimony, the engineer of a freighL train, which was moving slowly past the station, gave some boys permission to ride on the train, and one of them, in attempting to get on, was killed, it was held that there could be no recovery from the company; for the engineer, in giving this permission, acted neither within the scope of his actual or of his implied (b) Child of Tender Years Injured while on St;'eet Cm' Selling Water. Two cases, the results in which are rather to be referred to the general rules of the law relating to negligence in the case of injuries to children, may be here inserted. In a late case in Philadelphia, it appeared that a child between six and seven years of age had been in the habit, wit.h several companions, of getting on and off the company's street cars, while moving slowly in ascending a hill, for the purpose of selling water to the drivers and conductors, and that, while so engaged, the child fell from the front platform, which was without a guard, and was killed. It was held by P. J., that there was no case to go to a jury, because of contriuutory negligence of the plaintiff, the mother of the child, in allowing the child to engage in such an employment at such a tender age. 3 (c) Unattended Children on Railway Passenger Train. Two lHtle girls, one of them auout five years old, and the other older, but not larger, were put uya female relative upon a passenger car, with the intention that they should go from one station to another withont paying fare. It was not the custom of the company to demand fare of children so yonng, and the conductor passed them without noticing them, supposing that they were in charge of some adnlt person. No employe of the company knew that they were upon the train unattended. In attempting to get off at the station, through the aid of one of the passengers, one of them fell under the wheels and was injnred. A Kansas jury awarded a venliet of $12,500 against the railroad company, and jUdgment was rendered thereon. This jlHIgment ,,'as re\'ersed, upon the ground that there was no evidence of any negligence upon the part of the company.4 (4) Youth or Inexperience of Passenger not Looked to for the Purpose of Enlaming Implied Authority of Carrier's Sercant. If a youthful or inexferienced person is hurt or killed, in consequence of accepting the invitation, or ooeying the direction, of one of the carrier's sen'ants. who, at the time, is acting neither within the scope of his express liar implied authority,-as where the engineer of a freight train permits some boys to ride upon the train,there is no principle of law umler which the implied authority of the carrier's servant can be enlarged, in view of the youth or inexperience of the person so killed or injured. It matters not that he may not ue of sntficient maturity to he presumed to know or unllcrstaml the precise nature of the relati\'e duties of the several employes of the carrier. It does not follow from this fact that, as to him, the invitation or direction ,vhich has been given to him by the particnlar servant should be reganleJ as within the scope of such servant's employment. "The scope of the servant's apparent authority cannot be made to depend upon the ignorance 01' want of experience of particular individuals, 'bnt upon the presumptiolls which the public at large have a right to draw from their general knowledge of the powers usually exercised by parties oclChicago, etc .· R. :"r:chie, 8.3 III. 427. 2Chicago, etc., R. Cu!"ey, 9 Bradw.632, 641. S Smith v. PassengH R. Co. 13 Phila. 6; S. C. 9 Reporter, 45-1; affirmed on appeal, 9'2 Pa. St. 450, opinlon hr J. etc., R. Co. ¥. Flynn, 24 Kan.627; S. C. 11 neporter, 2-23; 1 Amer. &: Eug. R. Cas.
210.
NEW yanK C. &H. R. n. co.
679
cupying the same station. The ignorance of the deceased Sh0111<1 doubtless be cunsillered as bcaring upon the question of his own contributory negligence, but cannot operate to enlarge the lJoundaries of the agent's authority."! The youth or iJiexperience of the person injured" might excuse him from con-cuning negligence, but cannot supply the place of negligence on the part of the company, or confer an anthority on one who has none."2 § 4. (1) (a) BUT CAHRIER OWES TIlE GEKERAL DUTY TO TRESPASSERS OF TAKIXG CARE KOT TO IXJUltE THE)I. But while the carrier does not owe to trespassers on his vehicle the spedal duties which he owes to passengers, he stands under the same general duty of taking ordinary or reasunable care not to injure them, which every person is bound to exercise towards every other person, and even towards animals, although such persons or animals may be found trespassing on his premises. This rule had its origin in the leading case of Davies v. .Mann,3 where it was laid down, in the English court of exchequer, that if A. has negligently exposed his property to injury, and B. has negligently injured it, n. must pay damages to A., if B. could, by the exercise of ordinary care, have avoided injuring it. That case was decided in 1842. It has Illet with almost uniform approval in England and in this country, from that day to this. A rule of law which has been almost uniformly conceded with regard to injUries to property when helplessly exposed, can, by no process of reasoning, lJe deniml in case of injuries to human beings when exposed in the same way; and though there is some wavering in the decisions, it is now generally so applied. A frequent illustration of it is found in the case of injnries to trespassers upon railway tracks; and here the rule as laid down by HEXHY .J., in a -case in the supreme COlll't of Missouri, is believed to express in apt words the now generally receiyed view: "'Vhen it is saill, in cases where the plaintiff has been gnilty of contributory negligence, that the company is liable if, by the exercise of ordinary care, it could have preYented the accident, it is to be understood that it will lJe so liable if, after the discovery by defendant of the danger in which the party stooil, the accident could ha\'e been preYented; or if the company failed to discover the danger through the recklessness or carelessness of its employes, when the exercise of ordinary care would have discoYered the danger and avoided the 4 The llifference of opinion which is found in the cases uwler this head relates to the de:/ree of care which a railroad company is bonnd to exert to prevent injuries to tre,passers Oil its track or on its vehicles,-soll1e Gourts holding that it is responsible for tIle want of ordinary care, and others, that it is responsible only for wanton injuries, or for such gross negligpnce as is equiYalcnt in law to intentionalmischief. 5 The same principles apply to some extent ill respect of injlll'ies to trespassers on the carrier's Yehicles; though in respect of the degree of care which his servants are oonnel to exert before discoYering the trt>sp;lsser, the analogy may not lJe com plete. It may be said that the running of a rail way train at full speel is al ways dangerous, lJoth to persons who lIlay be npon tlte track, and to who may be upon the train. Those u pOll the engine are \lIlller the duty of maintaining a lookout, and in Ute night-time the company \vill 1I0t, un(ler ordinary circumstances, be excusalJle for running an engine withQut a head-light, to enable those ill charge of the engine to perform this duty. nut it cannot be said that either those in 1 Cb:cago, etc .· R. Co. \. Cases, 9 Eradw.63"!, 643. 2Flower \. Penn. R. Co. 6rl Pa. St. 210; Towanda Coal Co. v. Beeman, SG Pa. St. 4B; Snyder \. Hannibal. etc., H. Co. CO :\[0. 413; Sherman y. Hanlli1J:l1, etc., H. Co. 72 ':\[0. £2. eG. 31(1 :\Iees &. \\., tl-tj; S. G. '2 Thomp. ::'\eg:. 110.). j H:trhn .... St. .· R. Co. C:J 2\10. 2-2; S. C.6 Ceut. L. J.2.9; 1 Tholl1p. Xeg. 43]. St-e, Brown \'. Hannibal, etc., R. Co. GO 461 j Ishel v. Hannibal, etc_, R. Co. 60 :Mo. 47.j; S. C. 2 Cent. L. J. 590; Filll:lyson v. Chi.c:lg-o, etc .. R. Co. 1 Dill. iJi9; Baltimore, etc., R. Co. Y. St ate, :":6 3u6; Baltimore. etc., R. Co. v. Stat£',:n 5--12; :::\Iorris v. Ch;C:lf;o, etc .. R. Co. 43 Jowa,:..9; \\·eymire Y. ;;2 Iowa, ';3.'3. eSee Thomp. :\eg. p. 4-13 et 5£'r
680
charge of the engine, or the conductor or brakemen, are under the duty of maintaining an active vigilance for the discovery of trespassers on the train, with the view of seeing tnat such persons do not ride in dangerous places, or that they otherwise avoid exposure to danger. But after the discovery of tlw trespasse7', the parallel becomes complete in both cases. The trespasser has not forfeited his right to immunity from death or bodily harm by being a trespasser; and, on principle, the servants of the company are bound to exercise such reasonable care as they can, consistently with their other duties, to the end that the trespasser reeeive no injuries other than those which may arise from the accidents, the risks of which, as alreauy stated,! he has assumed. If, then, they force him off the carrier's vehicle,2 or order him off when it is going at a rate of speed wlJicl1 renders it uangcrous for him to get off,3 or negligently injure him, the carrier m<ty become liable in uarnages. This will he made more clear by the following illustrative cases. Boy Ordered uff a Train and Inj!(,red in Gettin.? off. The C:lse was that a boy had gotten into a freight car for the purp03e of stealing a riLle, had been onlereu out by the conuuctor, anu, in getting out, had f:tllen under the wheels and was killed. The court, in charging the jury, directed their attention to a number of circumstances which they should take into consideration in determinin,go the question whether the deceased waS gnilty of negligence which contribnted to his death, but omitted to tell them that they should take into consideration the fact that the del:e<tsed was a trepasser upon the defendant's train. It was held that this was not erroneous. In so holding, the court, through AUA)B, C. J., m:tde the following otservations: "As the instruction directed the jury to consider all the circull1stances, we are not prepared to say that it could te helll to be erroneous, even if the cirl:ull1stance that the deceased was a tresp"lsser were as important as defendant contends that it is. But, in the view which we take of the case, that circuillstance was not of great importance. The ueceased, at the time he was discovered in the empty freigllt car, does not appear to haye been in a place of immediate llanger. If he had teen alluwed to ride there, or had been remt)\'ed before the cars ,vere Pllt in motion, it does not appear that he would have been exposed to mndl uanger; certflinly not to the extent which happened. The dangel' arose and the accillellt happenelt by reHson of something whieh transpireu after the trespass had been committell, and, what is significant, after the boy had been discovered by the conrlnr:tor i l l the car. The proximate canse of the injury was not the entering of the car. It was either the carelessness in attempting to escape in the manner he dirl, while the car was in motion, or else it woulll bethe of the company in causing him to do so. And this would be so, even jf we shoulll conchtde that he exposell himself to llangel' by merely entering the car." 4 (2) Illmtrative Ca.,es-Carrier liable. (a) Trespasser on Engine Wron.gfully Thrown o.tT by the Sen,ant.., and Hurt. While the engine of a railway company was standing still upon a si<le track, the plaintiff, with the knOWledge of, and \l'ithout any objectiun by, the oompany's servants, mounted upon the same and seated himself Mnder the head-light. Shortly after this, the servants of the compallY put the engine in motion, and while the same was running at a rate of speed ..-hich rendered it unsafe for the plaintiff to get off, called upon him to uO so. He replied that he would get off if the engine was stopped. The servants of the company declined to stop the engine, and one of them shoved him off in such a manner that the engine passed over his leg, crushing it. It was held that the wrongfUl act of the defendant's servants in 1 Ante. 13. : Carter v. I,onl.vil1e. etc., R. Co. 8 Amer. & En:. R. Ca ·. 3H, (Sup. Ct. Ind. b82.) 3 Benton v. etc., R. Co :i5 1:'6j S C. 11 Reporter, S:J7. tBenton v.C'hlc:I!!(}, etc." R. Co. 5:' JOW.l: 4%j S. C. 11 Reporter, C:Ji.
681
thrusting him off the engine, under the circumstances, was the proximate cause of the injury, and not the wrongful act of the plaintiff in getting upon the engine. The servants of the defendant, in so thrusting him off, were acting within the general scope of their employment, and the defendant was accordingly liable.! (b) Contributory Negli,qence in Such a Case. In the case just cited it was held that the question whether he was guilty of contributory negligence in obeying the order under the circumstances was a question for the jury. "It is not," said the court, "for the company to say, if the train was in motion when the order was given, that the imprudence of the boy was so great in yielding prompt obedience to the order that the company ought to be excused for giving such an order, unless the age of the boy was such that he might reasonably have been expected to refuse. Possibly the boy, young as he was, had such knowledge, and should have had such presence of mind, as to have remained in the car while in motion, notwithstanding he had been ordered to leave; but we cannot say, as a matter of law, that, if he had all the knowledge supposed in the instruction, and the other circumstances had been as supposed. he was necessarily gUilty of contributory negligence." 2 A similar ruling is found in California, where a boy 16 years of age was ordered uy the conductor of the train to leave a car while in motion. He obeyed the order and was injured. The court held that they could not jUdicially say that the act was voluntary, and that it llIUSt be left to the jury to say whether he did or did not leave under compulsion. 3 (c) Boy Stealin,q a Ride on Engine. In a late case in Michigan a boy eight years old, trespassing on the premises of a railroad company, got on the step of an engine, and was orderetl off by the fireman. In jumping off hl) fell. The locomotive was started at the same time, and the tender passed over his leg. He was a boy of more than avenlge intelligence, and had been warned against going on the preulises or riding on the engine. It was held that the company could not be held liable for the in.iury, in the absence of evidence tending to show that the engineer, or other servants of the company in charge of the locomotive, knew that the child was ill the way, or that they had been reckless or negligpnt in the management of their engine, or could have anticipated the injury. The injury was deemed to have resulted from the negligence or carelessness of the boy himself, and from his fall, which was accidental, and such as the persons in charge of the engine would not be likely to anticipate. 4 (d) A Cage which Ignores the Foregoing Rule-An Intruder on a Hand Car without Riyltts. In a late case in it is held that cannot be recovered for the death of a person caused by his being negligently run over hy a train of cars while riding between stations on a hand car of the deFell(lant's roarl, at the ill\'itation of the foreman of a section of such road, unless it be made to appear that the cOlnpany was a cOlllmon carrier of passengers by hand cars. 5 Although the opinion in this case was pronounced by a judge of reputation, and was concurred in by four other judges, it seems entirelv il1llefensilJle. It declares, in substance and elfpct, that an intruder or treS!1aSSer upon the track of a railway company can ordinarily be run down and Jd\IpL! by a train of the company. aud that the company will not he liaule to pay damages to his personal rppresentative. If the deceasetl, instead of being a man, had been an ass," or a hog,7 or an oyster,S the rule mllst have ; Carter v. etc .. n. Co. 8 Amer. & Fnrr. R. Cas. 3-17, Court or Indiana, FS2. 2 Benton Y. Chic:lg"o. etc., R. Co.· fJ5 S.C. 11 Hepar-ter, t<J7.-op:nloll hy An·::'tTs. C.!. Klilje Y. Central Pac. R. Co, 37 Ca L -triO, 404. LChica:,:o. etc., R. Co. v. Smith, .;6 )'Ilch. 50-1. 6Hoarv. :'tlaine Cent. R. Co. 70 G5. GDn:yies y :\1:1 1\ n, 10:\Jees.& 'V. 5·!.-'. 7 Kerwhacker Y. Cleveland, etc., R. Co. 3 Ollio
St. li2. S:'Iayor or Colchester v. Brook, 7 Q. B. 339.
FEDERAL UEPUltTt;I:.
been different. The process of reasoning which culminates in the conclusion that, in urder tlutt a rail way company may owe to a man who happens to be upon its track the duty of not killing him, it is necessary that such man should have bought a passage ticli:et, will certainly arrest the attention of the profession. § 5. BURDEN OF PROOF CASE OF ACCIDENTS TO TUESP ASSERS. The rule that the mere happening of an acciuent to the passenger through the failure of some of the carrier's means of transportation is presumptive eviuence of negligence, such as imposes upon the carrier the bllruen of excusing himhas no application to a ease where a child, in endeavoring to jump upon a moving train of cars for the purpose of stealing a ride, falls on the track and is Idlleu. The relation of carrier audpassenger does not exist. It was saiu that no authority could be prouuced which holds that, when a trespasser ona railroad train is killed, the lmnlen of liability is thrown upon the com'pany, upon proof of the fact. unless the company can show by satisfactory affirmative evidence that neither it nor its agents or employes were at fault,! § 6. PENNSYLVANIA STATUTE AS TO PEUSONS WIlO ARE NEITHER E)!PLOYES N0I1 PASSENGEIlS. A state whose legislation has been notoriously corrupted by railroad intluences, at the most corrupt period of its legislation, disfigured its statntc-book with the following law: "If any person shall sus'tain personal injury or loss of life, while lawflilly engaged or employeu on ot about the 1'Oau, works, uepots,' and premises of a railroad company', or in at about any train or car therein or thereon, of which company such person is , not an . employe, the right' of action to recover in all such cases against the company shall be such only as would exist if such person were an empl0ye: provided, that this sedion shall not apply to passengers." 2 The purpose of ,this law is seen at a glance. Dya rule interpolated upon the com ilion law by juuiciallegislation within the last 40 years,:a servant cannot recover damages of his master for an injnry which happens to him through the negligence , ofa fellolV-servmit engaged in the same common employment. Now, the object and eHect of the above statute was to extend this rule to the cases of all persons who may happen to be laboring or engaged about the premises, or upon the trains of railroad companies, except those who are passengel's; so that any person, not a passenger, who may be compelled to place himself in such a situation, must accept all risks of the negligence of the pecuniarily irrc. sponsible persons who are employed by railroad companies, without any recourse in damages against the companies themselves, other than the limited " recourse which an employe would have under like circumstances. Such a law could not have been passed except as the result of direct or iIHlirect purchase. There is not a state in the "Cnion in which such a law, submitted to the popular vote, would not be rejected by an overwhelming majority. Its . very existence implies a breach of a public trust upon the part of the representatives of the people by whose votes it was enacteu. That it has found judicial apologists is not creditable to the jurisprUdence of PennsyIYania. A learned jlluge of the supreme court of that state has found "strict justice" in it. 3 Its constitutionality was affirmed by the supreme court of that state lSommers v. etc., R. Co. 71 Tenn. (7 Lea,) oWl. In the opinion of the court in this case it s:lid by eOOrER, J.: HThere are ca"es where the occurrence of an injury is. primafarie evidence of liability, anll the buruen is shifted
accordinglr. But the weight of autlH,rity seems to be that, in the case of an inj 'll'Y to a pas;.,enger, it is incnmbent npon the plainU:f to pru\-e that the proximate CaUse of the hjurr \"-as the want which, as a general rnle. the cnrrier was bound to supply, or the presence of some-
thing' which. as il. g-enerni the carrier was bound to keep out of the war; or, as it has been otherwise expressed, the injured Phrtr must not only be free from fault, bnt must p:-ove fncts creating a presumption, at least. of negli_ gence in the company producing the injury." 2Pennsy]\"unia .\ct of April 4, 1363; Penns)·lvania Pamphlet Laws, p. 53. 3 Penn. R. Co. \". Price, 9,j Pa. St. 236, 2i3j; S. C. 1 Amer. & Lng. R. Ca·. Z3!.
WATERBURY VrNEW. ·YORli ,C(. &
H. R. R. CO.
683
as'soon as it was assailed. 1 It has been held to apply to one who is injured while unloading his own goods from the cars of a railroad company, under p\lrmission granted by the agent of the company.2 . It applies to the servants of a railroad company which has a right of trackage over the railroad of another company; so that if a servant of the former company, while employed under this right upon the road of the latter company, is injured through the negligence of a servant of the latter company, he cannot recover damages of the latter. 3 It also applies to the ca'le of a route agent of the United States post-oliice department, riding upon a railway train in the discharge of his ollidal duties. If injurell through an accillent to the train, this statute prevents him from recovering dauwges of the compauy, as he is not deemed a .. passenger," within the proviso of the statute}
II. Passenger Injured while Riding in a Dangerous and Improper Place on the Carr.er's Vehiole. § /. GENERAL RULE. It is a general rule that, if a passenger is injured while voluntarily aud without necessity rilling in a place on the carrier's vehicle which is not allotted to passengers, in which place a person would be more likely to be injured from an accillent of a given kind, if an accident of such kind happens, and he is injured by it, and would not have been injured if he had remained In a proper place, he canuot recover damages from tIte carrier. 5 An exception to this rule, admitted by some courts,6 and denied by others,7 is that the carrier may be liable where the assumed the dangerous and improper place on the carrier's vehicle by the authorization or consent of his conductor or other servant in charge of the same. Upon grounds fully set forth in the preceding subclivision,8 this exception does not apply in cases where the passel1ger assumes the danrrerous and improper place upon the invitation, or with the conseut, of au agent of the carrier,-as an engineer or brakeman of a railway train. Th:s rule will now be discussed and illustrated. 8. A RECEXT CmDIEXTAny UPOX TIllS RULE. In cases of this kind, the right of such passenger or his legal representative to recover will clearly depend upon a consideratIOn of the question whether the accident was such that his danger "'as or was not increased· by riding where he did. A very intelligent discllssion uf this subject is found in a late case in Kentucky, where it is said by COFER, J.: "If a whole train be precipitated down an embankment, or through a bridge, into deep water, and a passenger seated in the express car is drowned. his representative will have the same right to recover as the representative of a passenger who was seateel in a passenger coach. There could be no pretense for saying that, because the passenger in the express car was more exposed to danger in case of a collision with a train running in the opposite direction, than he would have been if he had been in the passenger coach, he ought not to recover, when it is clear that, as respects the misfortune which actually occurred, his danger was not at all increaseu 1 Kirby v. Railroad Co. 76 Pa. SI. 506. 2Richard v. North Penn. R. Co. 09 Pa Sl. 193. al\Inlherrin v. Delaware R. Co. 01 Pa. St. 366. 'Peon. R. Co. Y. Price, 96 Pa. St. 23G, opinion by PAXSON, J.; TRUNKEY, J., dissented; S. C. 1 Amer. I< Eng. R. Cas. 234. SPennsyl,ania R. Co. Y. Langdon, 92 Pa. St. 21, 27; H01lstoT:,etc .· R. Co. Y. Clemmons, :i5Tex. E9; Railroad Co. v. Jones, 95 U. S. 4:39; Chicago. etc., R. Co. v. Carroll, 5 Bradw. 201, 210; Kentncky Cenl. R. Co. v. Thomas, 79 Ky. 16<l. (l Kentucky Cent. R. Co. Y. Thomas, sopra; Dunn v. Grand Truuk R. Co. 5S :lIe. 137; Clarke v. Railroad Co. 36 X. Y. 13-3; Carroll v. l"ew York, etc., n. Co. 1 Duer, 571; O'Donnell v. Allegheny. etc., R. Co. 09 Pa. St. 239; v. Northern R. Co. 21 LT. C. Q. B. 98; Fowler Y. Baltimore, etc., R. Co. 1'3 \V. Ya. 579. See, nlso, St. Louis. etc .· R. Co. Y. Cautwel1.37 Ark. 519; Filer v. N"ew York, ete .· R Co. 4] S. Y. 47; L::tmbette v. Xorth Car. alina. etc .· R. Co. 66 N. C. 4'39. 7Hickey v. Boston, etc., R. Co. 14 AHen, 429; Downey v. Hendrie. 46 )Iich. 493, 501; Pennsyl. vania R. Co. v. 92 Pa. St. 21; S. C.l Am. &. i::ng. H. Cas. Si. 8.'I.ute, I 3, (I.) (2,) (3.)
(lS4
EEDERAL REPORTER.
by the fact that he was in the express car. So, also, of a large class of rail- . road disasters which result from the giving way of the track, or the breaking of some portion of the car. These are as liable to occur at one portion of a train as at another, and consequently a passenger is in no more danger of injury from such accidents (?) in the express car than in a passenger car; and the fact that he was in that car when the accident occurred would not defeat his right to recover, unless, perhaps, the injury should result from some agency in that car which would not have existed in a passenger car. But there is another class of disasters in which the danger m'tY be greater in the express car than in the passenger car. Express cars are usually in advance of passenger cars, and, in case of collision with stock or other objects on the traek, or with trains running in the opposite direction, the danger would be greater in the express car. It seems to us, therefore, that when contributory negligence is interposed as a defense to an action against a railroad company tor neglii{ently injnring a passenger. and the supposed negligence consists in the fact that the passenger voluntarily occnpied a position in the train other than the position he should have occupied, the nature of the accident causing the injnry is to be considered; and if, upon such consideration, it appears that the danger of injury from that particular accident was materially increased by the fact that the passenger was in that particular place, instead of the place he should have occupied, he ought not to recover nnless he was there with the consent of the conductor. But if the nature of the accident be such that the danger of injury was not enhanced in consequence of the position occupied by the passenger, or if the accident was of such a nature as was as likely to occur in one portion of the train as another, or if he occupied the place with the knowledge or consent of the conductor, his right of recovery will not be affected by the faet that he was at an imIJroper place." 1
§ 9. How,
UNDER ILLINOIS DOCTRINE OF CmIPARATIVE NEGLIGENCE.
In Illinois, under the doctrine of <'omparative negligence which there obtains, it has been ruled that such conduct on the part of the passenger is such a higll degree of negligence as will defeat a recovery, unless the servants of the company are guilty of wanton or reckless misconduct. 2 Rirlii/f/ ill BafF/age Car. FALLING WITIIIN TIIIS RULE. (1) Passen.'!er A very valuable contribution to the law on this subject is fOl1nll in a late case in Pennsylvania, in which the opinion of the court was delivered hy PAXSON, J. A railroad man tr:weling on the defpndalit's rna,l as a passenger, chose to rirIe in a haggage car. He was well aware of a rt'gulation of the company forbi<ltling this. which regulation was conspicuonsly posted in the baggage car itself. The notice recited that" they [the train men] must sr,e that are properly seated, and will not allow them io stand on the platforms of cars, nor ride in the baggage or mail cars. Conrlqctors and brakemen are instructed to strictly enforce this rule. and it is expected that passengers will cheerfully comply, as the rule is one intended for their own safety; it being particularly dangerons for passengers to be on platforms as trains approach stations." While so riding the train co]]irle,l with train. The baggage car was wrecked and the passenger was kille'l. If he had taken a seat in one of the passenger coaches. the evidence teudell to Rhow that he would not ha\'e been hmt. It was held. as applicable to tllPse facts, substantially, that there could ue no reco\·ery. The right of a railroad company to make reasonable rules for its own protection and for the safpty and cUllvenience of its passengt'rs h;1(1 been frequently recognizerl. and was alfirmed. It was held that a passenger who \'oluntarily leaves his proper place in a passenger car, in violation of the well-known rules of the companv, to ride ill the baggage car or other known place of danger, anll is injured in 'conILLUSTRATIVE .Keulnck}· Cent. R. Co. v. Thoma',;9 Ky. 160. 2Pcoria, etc., R. Co. Y.
§ 10.
Lane,
Ill. 4-18.
685
sequence of such violation, cannot recover damages therefor. Bnt it was conceded that this rule wonld not apply to an accident which might be the res nIt of a brief visit to the baggage car to give some needed directions about the passenger's baggage, to have it rechecked, or fllr any other legitimate purpose. .. The baggage car," said PAXSON, J., "is a known place of danger. In this respect it dill'ers from the cow-catcher and platform only in degree. It is placed ahead of the passenger cars, and next to or near the locomotive. In cases of collision it is the first car to give way to the shock, and frequently is the only one seriously injured. It is treated as dangerous by the rules of all wellregulated companies, and the rule of the deflmdant company emphatically declareu it to be so. An infant or an idiot might IJe excused from riding in such a position, by reason of his lack of mental capacity; but an intelligent man, accustomed to railroad travel, must be presumed to know its danger. It is patent, anu the same uJ1ller all circumstances. * * * In considering this question, regard mUit be had to the character of the rule violated. The rules adopted by railroad companies are a part of their police arrangements. Some of them are for the convenience of the company in the management of its business; others are for the comfort of passengers; and yet others have regard exclusively to the safety of passengers. The distinction between them and the difference in the con seqnences of their violation are manifest. As an illustration: it would IJe unreasouable to hold that the violation of the rule against smoking could IJe set up as a defense against an action for personal injuries resnlting from the npgligence of the company. On the other hand, should a passenger insist npon riding upon the cow-catcher in the face of the rule prohibiting it, and, as a consequence. shonld be injnred, I apprehend it wonld IJe a good defense to an action against the company, even though the negligence of the latter's servant was the cause of the collision or other accident by which the injury was occasioned." 1 In another case a passenger riding on a rail way train, who, instead of occnpying a coach provided for passengers, after going into the IJaggage car to get a drink of water, remained there for an unreasonable length of time,-in the particnlar case five minntes,-without necessity therefor, knowing the fact that he was in more danger there than in the passenger coach, and, while thus remaining, received an injnry in consequence of the wrecking of the train. which injury he wonld have avoided if he had remained in the passenger coach, was 1H'ld gnilty of such contributory negligence as prevented him from recovering damages from the company.2 (2) Passenger Riding on Platform of steam Railway Car. If a passenger, even at a time while many of the cars are crowded in consequence of an extraonlinary influx of passengers, Yoluntarily remains on the platform at a time when he might, by the exercise of reasonable diligence and exertion, find room within some of the cars of the train, and, in consequence of being so upon the platform, is thrown or pushed off by the ordinary movements of the train, whereby he sustains injuries, he cannot recover damages from the company; and this is so, althongh he may not have actually known tilat there was any room for him in any of the cars, pro\'ided the circumstances were such that he might have discovered this by reasonable observation and effort. 3 (3) What if Passen,gel' is Obliged so to Ride by Reason of Bxtraordinary Cro/cel of Passen'/ers. In a case of this kind it was urged that tile carrier might, in view of the unexpected number of passengers wilo presented themselves, have refuseu to sell tickets, or admit passengers to its cars IJeyond their reasonable seating capaeity, anu that it could in no other way escape the imputation of negligence for a failure to furnish suitaIJle accommodations Ipenn.sylvania R. Co. Y. L:l.ngdon, 92 Pa. St. 2i. 2Hou&ton, etc .· R. Co. "Clem mOlls, 5:J Te..L 89. 3Chicago, etc., H. Co. 210. Yo
Carroll. S Bradw. 201,
686
to all who were accepted as passengers. The court, llOwever, did not take this view. BAILEY, P. J., said: "A rule somewhat analogous to the one here contended for obtains in the case of common carriers of freight. It is doubtless competent for such carriers, when there is a sudden and unexpected influx of freight beyond their ordinary means of transportation, to refuse to receive more than they could reasonably transport. But it is held that where they receive freights and undertake to carry them, they cannot excuse the failure to transport safely and deliver, by alleging that the amount receiYed was lJeyond their means of transportation. 'fhere is, however, a very lJroad distinction between the duties and liabilities of common carriers of freights and passengers. The former are under an absolute duty to transport and deliver, from which, when once undertaken, nothing can release but the act of GalloI' of the pulJlic enemy. The liability of common carriers of is lnueh more limited and qualified. The law enjoins a very high C:cgreeof care and diligence, it is true; but, unless there is some failure in tlJe exercise of such care and diligence, there is no lialJility for any injuries their passengers may receive. Doubtless the defendant would have been justified in refusing to carry 1110re than could be reasontllJly accommodated in the cars it lwd at command; but it was not bound to do so. If more than could be seated desired to ride. and were willing to stand in the aisles, or even on the platforms, we are unable to see how the defendant was guilty of negligence in permitting them to do so. DoulJtless, greater care was required in the running and management of the train itself, crowded with passengers; lJUt permitting it to be thus crowded, when there was no other means of transport, was not of itself negligence." 1 It was therefore held, in substance, that where an unforeseen crowd presents itself to a railway company for transportation, upon a holiday occasion, and the company is unalJle to furnish seats for r,ll who purchase tiekets, in consequence of which the platforms of the cars are crowdeu with passengers, and one of them is thrown off by an ordinary jerk of the car, in detaching anothcr car from the train, and injurecl, the company will not be HalJle for the injury.2 (4) Riding on the Pilot of the Engine. The same rule was held to apply where the person injured was riding on the pilot or bumper of the engine. 3 (5) Riding in Sittin'l Position on Front Platform of Street Car. Upon the same principle, it has lJeen held that a passenger who receives an injury by falling from the front platform of a street rail way car while in motion, upon which he occupied a sitting position, against the rules of the company and the warning of the driver of the car, and without any reasonable excuse therefor, is not in the excrcise of such care as will entitle him to maintain an action against the company. A regulation by a street railway company that passengers shall not ride on the front platform of its cars is a reasonable regulation. 4 § 11. ILLUSTltATIVE CASES wmCR DO KOT FALL THE RUl.E. (1) Ridin.'l on Platforms of Street Cars. (a) So to Ride not Negligence per8e. For a passenger to ride on the front platform of a street rail way car is not negligence per 8e. 5 And for stronger reasons, the same rule would apply to the act 1Chic.go, etc., R. Co. Y. Carroll, 5 2OS. 2Id. !RaiTroad Co. v.lones, 95 U. S. 439. tWill Y. Lynn, etc., R. Co. 12") )lass. 3,;9; 11 Reporter, 12. 6Nolan Y. Brooklyn Cily R. Co. fJ1 N. Y. 63; Germanto\,,-n Pas5eng:er R. Co. v. \Valling. 97 Pa. St. 53; .M:t.gnire Y. R. Co 115 :Mn5t!. 239; Bnrnlli v. Bellefontaine R. Co. fin :\10. l:1Jj blee:iel v. L)"ull, etc., n. Co. S .\Hcn, :.!3L To the
same e!feet. see Willis Y. Long Island R. Co. 3! :->. Y. 670; Hadencamp Y. Second AYe. R. Co. 1 Sweeney. 490; Ginna Y. Second Ave. R. Co. 67 N. Y. 596; Zemp v. Wilmington. etc., R. Co. 9 Rich. L. 8!; Lafayette. etc., R. Co. T. Sims. 27 Ind. 59; Macon, etc., R. Co. v. Johnson, 38 Ga. 409. It seems to have heen conceded by the :->ew York court of appeals in one case that the act or a passenger, in riding on the front platform or a street car. is negligence per se. But it was laid down that, if there is a presumption of negligence
WATERBURY V. NEW YORK C. & II. R. R. GO.
,687
of apassenger in riding on the rear' platfOrm. 1 'The reasohs for this rule ate well stated in a case in Massachusetts: "It is well known that the highest speed of a horse railroad car is very moderate, and the driver easily controls it, and stops the car by means of his voice and reins and his brake. In turning round an angle from one street to another, passengers are not re<}tlired to expect that he will drive at a rapid rate, but, on the contrary, might reasonably expect a carefnillrin'r to sb\l'ken his speed. The seats inside are not the only places in which the mml:lgl'rs expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside until the car is full, aud then stand on the platforms until they are full, and continue to stop and receive them even after there is no place to stand, except on the steps ut the platform. Xeither the onicers of tliesecorporatic)ns, nor the Ioanagus of the C:lrs, nor the traveling public seem to regard this practice as hazardous; IIor does experience thns far seem to require that it shonlel be restrained on account of its dange:". There is, therefore, no basis on which the court can decide, upon the evillence reported, that the plaintiff diel not use ordinary care. It was a propel' case to be sU!Jlnitteel to the jury, upon the special circumstances which appeared in evideuce."2 (b) L'ases of [njnl'ies while RUin,? on Front of Street Car. Accordingly, if a passenger, while riding on the front platforl1l of a ,street car, is thrown off, in consequence of an unusual motion of the car, ca!l:ied by the driver strildng or whipping the horses, or by the horses becoming ullmanageable, there is a !jue:ition of fact to go to a jury on the !jue;tion of the negligence of the llefendant and the contribntory negligence of the plaintitf. 3 So, where a c1'ow(le,\ passenger car was hailed and stoppel! for a to get on; and he, being uualJle to get on the rear platform !;y reason llfthe crowd, went to the front platfllrm. which was also Cl'U wl\ell , but succeetled in standing on the step, au which there were alre;\l\y tlVO persons, by holding on to the hanl\-rail at the side; aud, in tUl'lling a curve, several passengers pushell against him. hreakiug his hold, so that he fell under the whef'ls amI wa, killed,-in an lJy his wi:ltJ \V for it was held, riillrming the judgmeut of the COllrt below, that the questioll whether U:e deceased "'as guilty of contributory negligenee was. properly submitted to the jnry.4 (e) Passenger InJnrerl milile llirlin!! on Rear Platform of Street Cdr. A passenger, riding on the re:u' platform of a crmnled street car, was, struck by the pole of the car following and seriously injl1red. It was helel that;. in riding in this place, he was llot guilty of contrilJutory negligence; that, from tl:is f:\ct, yet the facts that the car and platform fu1l of so th".t there jg no rOOil1 for m'--,re, and that the co '. ductor "tops for and reeeiYes f<lre from the pas. so riding, are suffiejent to rehut presumption. Clark v. Eh::hth ..\..Ye. H. Co. 36 X. Y. L3..j. In like m:lnner. where tLe cal" Wa"'!'o cro\YlleLl that a particular P:\S"'f:"l;:d' wa..; ohli:!eJ to!'tand Oil the Tear platform'l and was !iJere jt'rke,l vtr the Car by-its motion and hnrt, it held that the fact that there was no other place for him to stand rebnlte 1 the pre<:u:nption of neg-Ii. whleh might ar:s! from hi"; standing in that po"itiOTl. 'Vanl V. Cent. P;lrk , etc .· TI. Co. 11 ,\bb, PI', S,) HI. where a r.onctnclor forced a bOj', against to gi\·e up an insiJe seat in the car, nnll uccupy a place on the platform, there was no eYI.l"'lH:e of negli. on the part of the boy. Sheri,hn v. Brook· lyn, etc., R. Co. 36 X. Y. 39. But tllis tion of is not rebutte 1, whell all th:\t appears by the e,·lJence is that the
on the front Hlntform. Solomon v. Cent. Park.; etc" n. Co 1 Sweeney, 2 1].3. latter deci"ion!'i, it is perceiYe(t, tll:lt pl'fsnmpth-e for a passeng:e:to nde 0 I the pl:ttform or a car ani] the case hst so hollis; hut, in vie\\' of the late dec;sioll of the conrt of appt":ds of Xew York in .xolan Y. Brooklyn e,ty R. Co. B7 N. Y_ G-J, thIs tloctl'ine must 1IO\V be regartled as o\·ertnrned, anu it IS to be left as n question of fact f01" the jury. II oder the elrcu lllsta lice .. o( each C;l !'e. whether or not the act of the in l'i,ling- upon the platform of a !'-treet car is to be imputeil to him as 1 Thirteenth, etc .. R. Co. Y. BClu,lrou. 92 Pa. til.. ·17.). Y. Lynn. etc., R. Co. a _-\llen. 231. 3;Xolan v. Brooklyn City, etc, R. Co. 87 N. Y.63. iGermantown Passenger R. Co. v. 97 Pa, St. 05; S. C. :2 Am. & Bng. R. Cas. 20; 12 Ph:I.,3J'),
688
although the accident would not have happened had lIe not been In this position, yet the position was but a condition, and not the eanse of the injury; and that the court properly withheld from the jury the question of contnbutory negligence. The court, in so holding, recognized as the proper test of contributory negligence the allirmative of the question, did the plaintiff's ligence contribute in any degree to the furthering of the injury complained of? If it did, there can be no recovery. If it did not, it is not to be considered. The opinion af the court is, therefore, equivalent to a ruling that the act of the passenger in riding upon the rear platform uf the car-the same being crowded-did not contribute in any degree, in a legal sense, to the injury which happened to him. 1 (2) Gettin.rJ on Street Uar by the Front Platform. The rules of a street rail way company placarded in its cars m:!.y prohibit passengers from getting on the cars by way of the front platform. The front platform of SUell cars may be surrounued by a railing to prevent passengers from getting on and uff in this way; and it may be, unuer oruinary circumstances, so dangerous for them so to get on and off as to maIm such attempts negligence. But, nevertheless, circumstances may exist where a passenger will be justified in attempting to get on a street car by this moue; an,l, although not justified, if such an attcmpt is made, and the passenger thus wrongfully puts himself in a position of danoer, and the driver, seeing his danger, or, owing to the peculiar circumstances, is under the duty of knowing it, nevertheless whips up his horses and throws the passenger down while so attempting to get on, and hurts him, there may be a question of negligeuce to go to a jury. In such cases as this the doctrine of the court of exchequer chamber in 1'uff v. Warman,2 that" mere negligence or want of ordinary care or caution would not disentitle him to recover, unless it were such that, but for such negligence or want of ordinary care and caution, the misfortune could not have h,Lppened, nor if the defendant might, by the exercise of care on his part, have avoiued the conse'1nences of the neglect or carelessness of the plaintiff," may well be held to apply. It was so helll, where a street car wa.'! so crowded that some of the had to stand on the front platfurm, and, the car having run off tile track, these passenger", at the request of the driver, alighted and lifted it upon the traclr, after which sever'll of them climbed upon the front platform over the iron railing extending arouud it, and one of them, while so attempting to climb upon the front platform, waS thrown down, by the act of the driver in releasing his brake anll starting the car with a sudden motion, an'1 was draggell for some distance anrl hurt. It was contrary to thl1 rnles of the c01l1p,my for passengers to get upon the car by way of the front platform, and a notice of this was posted in the car. It was hdll, notwithstanding these facts, that there was evidence of negligence on the part of the defendant, legally sulfiuient to take the case to the jury. In answer to the objectio.l that there was 110 obligation on the part of the dri vel' to look after or exercise any care or pruuence in regard to persons attempting- to board the car by the frout platform, because such had no right to enter the car in that direction, the court said: "OrJinarily this would be true; hu t, under the circul11.:ltances of this case, taking into consideration that the appellee had paid his fare, and that, owing to the crowdell condition of the car, he was oblige,} to stand on the front platform; that he harl gotten off at the request of the driver to help in gelling the car again on the track,-in view of this and other facts in this case, there was an obligation on lIle part of the driYer to see that the appellee and others hall an opportunity to get on the car again befure hA started the horses, and if he saw, or by the exercise of proper care might have seen, the position of the appellee, and thereby avoilled the injury, .Thlrteenlh, etc., R. Cn. v. Boudrou, 02 Pa. St. -
12 C. B. (N. S.)
·
WATERBURY V. NEW YORK C.
&;
II. R. R. CO.
689
we think the company was liable." 1 But this doctrine does not apply to a state of facts where the last linlr in the chain of concurring causes leading up to the inju,y was the negligence of the plaintiff himself, the negligence of the defendant beiug an intermeJiate link. Tlms. where the step of a street car had been broken off and it had not been replaced, and where the car, moving along in the customary way, was approached by a boy 15 years of a:;e, with the apparent purpose of getting aboard, and nevertheless did not stop for him to get on, and the boy, instead of attempting to get on by the rear platform, made the attempt by the front platform and was thrown down and hurt, it was held that there W:lS no case to go to a jury, even conceding the negligence of the company in runl1ing a car whose front platform had no step, and b not stopping the car to enable the boy to get on. 2 (3) Passenger l'raveling in a D.jferent Sleeping Car from the One to whi/;h He had been Assigned. In a late case in the snpreme court of the United States, it was held an immaterial circumstance that the passenger, when injured, was not sitting in ths particular sleeping car to which he had been originally assigned. Ilis right for a time to occnpy a seat in a car in which a friend was riding. where he was at the time of the accident, was not, the court said, and, under the facts disclosed, could not be, questioned. 3 (4) Passfn.qer Ridin.g with His Elbuw on the Sill of Cor Window. It has been recently held by the snpreme court of the United States not negligence for a passenger having a severe headache to rest his elbow on the sill of the w:ndow of the car in which he was riding; and where his elbow was jarred so as to be forced outside the window by reason of the car in which he was riding corning in contact with a freight car which had been negligently left on the side too neal" the lir:e of the main track, along which the train was passing, so that he received a severe injnry which reqUired the amputation of his arm, it was held a case uf cnlpable negligence on the part of the servants of the receiver in charge of the railway, and that the receiver must pay damages. 4 IPeople's Passenger R. Co. v. Green, 56 Md. 84,93. 2D:etrich v. Baltimore, etc., R. Co. 5S lI1d.347. The court said: "The case falls fully ttd principle and reasoning of the Case of tbe Ralt... road Co. v. Jones, 95 U. S. 4:39, 4-13." ROBINSON' and RITClUE, JJ., In latter case the following was laId by Mr. Justice SWAYNE the principle in cases of concurring negllgence: HOne W:lO, by his negli... ger.ce, has brought an injury upon himself, ca.n_ not recover damn.ges for it. S:lch is rule DC tIle CIVIl and common law. The pJaintitt'in such cases is entitled to no reLer. But where the de. fendant h"IS been f!:lJilty of also, in the same connection, the result on the facts. Thl3 question in !'ouch cases is (I) whether dam... age was occasioned entirely by the or im ... proper cond u.::t of the rlefend:lnt; or "' hether the so far contributed. tu the m:s... f;)rt nne by his own VI" want of ordinary care or caut:vn. th;.t. for such Ileglect and w .. nt of oru:nary care and caution on hiS part, the m:sfortune would not have happened. In. the former he is entitled. to recover; in the latter, Le is oot." Railroad Co. v. Jones. 9.:-; U. S.4':9. This hW6'Il:lge w:t!'l cited with npproV'al In· the court of appea's of in etc" R. Co. v. :\rorris, 31 Grat". 2.{I, 2113. 3Pennsyh-:tnia R. Co. v. Roy, 1,2 U. SAGl, 4:>9. t Farlow v. Ke:ley. 2 Snp ct. Rep. 555, (Snp. Ct. U. S. 1083.) There ts some anthority for the that the net of a passenger In riding with his elbow on the sill of the winlow of a steam railway car is not negligence Be, even where it projects bej'ond the of the CHr. Ch.c:lgo &0 Alton R, Co, v. Pondrom. 51111 z:n. 310; Speno cer v. etc., R. Co. 17 \Vki. 487. The author ventn:es to thtnk that this 18 the better view, and he is glad to fird his sustallled to some extent by the decision of the supreme court of the United States, above CIted. The reason which snpports this vieW' is that tbe Witi03WS of ra:iway passenger coaches beine; at a height at which It is convenient Cor to their elbows upon them. tired are temp ed to do tl1:8; and those who are acquainted with railroad travel know, a" a . . ct. that g,:;!!1eraHy du this. I do not see how a thing wldch people in a gh'en gener.lll.r do can be pro;lOlIoced negligence as m::ttter of law. I do Lot see how railro;.d managers who permit ob. stilcles to come so near theil' pas:o'enger coaches as to str,ke the arms of thus expo.:'ell can, in view of the high degree of care which the law puts upon them as carriers. of pas:o'ellg'er:", ask the law to them and to put the blame upon the The of authority, howe\·er. seems to be in favor of the view that the of the paS::iellger in rilling witll his arm
v.17,no.D-44:
G90
(5) 'Passenger Standing in Door of' Cabin' Thrown Down by. Boat Striking lVhalj' with Undne Violence. It is not negligence for a passenger on a ferryboat, as the boat approaches its slip, to rise from his or her seat in the cabin and move forward and stand in the doorway of the cabin, awaiting an opportunity for exit from the boat; and if, while so standing, he or she is thrown down :md. injured in consequence of the boat being permitted to strike the slip with und.ue violence, it is a case for damages against the owner.1 § 12. 'WHAT IF HIDES SUCH WITIl TilE KKOWLEDGE OR OF TIlE CONDUCTOn. (1) General Views. The COlll'ts generally hold, in such cases, that the act of the condnctor in inviting the passenger to ride in a dangerous and illl proper place on the train, or the fad that the passenger so rides with the knowlellge or consent of the cOl1l1uctor, will be an answer to the objection of contributory negligence on the ]lart of the passenger. 2 A case in Massachusetts is to the contrary effect, and suggests a very good reason for the contrary view. A passenger had been injured while riding upon the platform of one of two colliding cars, with the express permission of the conductor. ,VELLS, .J., said: "It is not enough for the plaintiff to show that Hickey, the passenger. was rightfnlly upon the platform. Because he might rightfully occupy whatever place the conductor should permit, it does not foflow that he wouW llo so at the risk exclusively of the corporation." 3 In like manner, in a late cIeeision in .:\lichigan, it is said that this rule is plainly not. one of universal application: "Hegard must be had to the passenger's capacity to look out for himself, to the opportunity tlwre may be to get a safer position, to the distinctness and extent or degree of the peril, and so on. Take the case of a child, and the case of a man every way qualified to take care of himself; the case where the position given seems ,tolerably safe and no better is perceived, and the case where it is manifestly one full of danger, and a safe one is known which is equally accessible. It ,,",mId be very unreasonable to apply the rule equally to all. .:\lay the ordinary passeuger, with his eyes open anll with abundant accoillmodations lJefore him which are safe, accept an iIlYitation from the carrit'r to ride on the cow-catcher, ;lIlcl then, if injlll'y arise from it, be allowed to set up the invitation as a legal answer to the charge of contributory negligence? To conclude that he might \\'ou1<l he to permit a person of full ca p;\city to exempt himself from the duty and responsibility appertaining to him as a moral being, and, in substance, to stultify hi IIlself,in order to cast a liability upon another." 4 The supreme courtof Pennsyl vania has lately taken the same view. " If," said PAXSOX, J., " the passengerth as recklessly exposing his life to possible accillents were a sane man, more espe"ially if he were a railroad nun, it is ditIkult to see how the knOWledge, or even assent, of the conductor to his occupying such a position could affect the case. There can be no license to commit SUicide. It is true, the conductor has control of the train, and may assign pas:sengers seats. But he may not ont of the window is I'!T such negligence as WIll pre\-ent him from recovt>ring damages for :111 injury receiveJ by his arm coming III contact with external object whiie in such position. To·ld Y. Old Colony, etc., R. Co. 3 Allen, IS; S. C. '7 .-\Ilcn. :'0;; Pittsburgh, etc., R. Co. Y. An:lrews, 3.1 :\Id. In\lianapolis, etc., R. Co. v. Rnther. fonI,2'J )lorel y. In!'. Co. 4 Bush. etc., R. Co. \". Sicking::::, 5 BOfolh, 1; lIuilJrLJok Y. Utica, R. Co. 12 X. Y. 236. III the of I'ittsburgh,etc., R. Co. v. )IcClnrg, 06 Pa. St. the court, in holding as above sbted. eXl're'5sly overruled the earlier cftse of :\"ew Jersey, etc., R. Co. v. Kennard, 21 Pa. St. In Laing v. Colder, 8 Pa. St. 479, it Wl1S helJ that if the extenueu arm was urokeu by coming in contact with no bridg-e, the carrier wonl,] not h'? for the i:tjury, if be g'U ye timel}' not:ce or the d"lnger, so that the plaintiff might hll,·e avoided it. lCamllen, etc .. Ferry Co. v. ::'tlonoghan, 11 Rellorter, 717, (Sup. Ct. P". 1S';I.) 20'Donnell v. Allegheny, etc., R. Co. 59 Pa. St. 239; Carroll Y. Xew York, etc., R. Co. 1 Duer, 571; L l\ortherll R.Co.2-t U. C.Q. B. 93; Borns v. Eellfontaine R. Co. 51) :\10. 13J; Clarke v. Railro:ltl Co. 36 N. Y. 13£:1; Kentucky Cerit. R. Co. v. Thomas, i9 Ky. 160,16';; Dunn Y. Grand Trunk R. Co. ['S 187. 3Hicke;r v. Haston, etc ... R. Co. 14 Allen, 4::.'9. i Downey v. Hendrie: 46 )'lich. 4'3"3, £:01, opin.. ton b)' GRAVLS, J.
&:;
(i9l
assign the passenger to a seat on the cow-catcher, a position on the platform, or in the car. This is kr,own to every intelligent man, and appears upon the face of the rule itself. [The learned jU!lge here referred to the rule set out in the preceding section.] lIe is expressly required to enforce it, and to prohibit any of the acts referred to, unless it might be riding on the cowcatcher, which is so manifestly dangerolls and i 111 proper that it has not bee:! deemed necessary to prohibit it. 'Ve are unable to see how a conductor, in violation of a known rule of the company, can a lIlan to occupy a place of danger so as to make the company responsible. It is otherwise as to rules which are inteuded merely for the convenience of the company or its passengers. * * * I am not aware that it has been decided in any well-cone sidered case that a passenger may, as a matter of right, ride in the baggage car at the risk of the company. In a few cases it has been held that tbe assent of the conductor is suflicient to charge the latter with the consequences of such act; that it amounts to a waiver of the rule forbidding passengers to ride in the baggage car. But how can a conductor waive a rule which, by its very terms, he is commanded to enforce? He might neglect to perform it, and, when the rule is a mere police arrangement of the company, such neglect may, perhaps, amount to a waiver as between the passenger and the company. But when the rule is for the protection of human life, the case is very different. We are not disposed to encourage conductors, or other railroad ofl1cers, in violating reasonable rules which are essential to the protection of the traveling public. If it is once understood that a man who rides in the baggage car in violation of the rules does so at his own risk, we shall have fewer accidents of this description." 1
(2) Illustrative Cases. Accordingly, where a got upon a street car at the rear platform, entered the car in which there were unoccupied seats, passed on through the car, and, as he testified, at the invitation of the driver, took a seat upon the driving-Lar or guard of the front platfo;'l11 , aIHI the driver, after the car had moved on for a space, struck the horse, whereLy the car gave a jerk which tipped the plaintiff off, so that a wheel over his arm and injured him, it was held that he coulll not recover and that such a case ought not to go to a jury.2 On the other hand, haYil1g stoppel! at a station, the conductor told the plaintiff, who was in charge of cattle on the train, lPennsyl,ania R. Co. v. Langdon, 92 Pa. S't. 21,28; S. C.1 Am ... l.:ng. R. Cas. >07. ':'he court met with no difficulty in deciding tile case upon the ob,'ious reason which to govern; but it did hale difficulty in with the adjUdged cases, several of which !lave held that the assent of the conductor to the act of tile passenger in riding in a dangerous and improper pl:lce, will preYent the company from setting up 5uch net of the passenger as contributory negligence. H\V"e are not aware," continued the learneu judge who delivered the opinion, 60that the foregoing views conflict with any of onr own cases. They may not harmonize with some of the dicta which lie scattered through them; but a careful examina. tion of the points decided shows no serious em. barrassment." He then proceeded to distingnish the cases or O'Donnell v. Allegheny R. Co. 59 Pa. St. 239; Lackawanna, etc., R. Co. v. 52 Pa. 81. 382; Creed v. Pennsylvania R. Co. 86 Pa. St. 139; Dunn v. Grand Truuk R. Co. 58 187; Isbell v. Kew York, elc., R. Co. Zl Conu. 393; Keilh v.Finkham,43 Huelseukamp V. Citizens' R. Co. 34 54; S. C. 37 037. The c"e or Jacobus v. Sl. Paul, R. Co. W
Minu. S. C. 1 Cent. Law J. 371, was not reo garded as entltled to wei.!!ht as authority. "The reas-onin:.! of the conrt," said P.u:SO.lO, J., His Dot satisfactory, :lIHl the :Iuthorities do not the posltioLl by the learned judge wbo deHYercd the opinion." On tbe other han!'l, the learned judge referre.! to the case ()f Robertilon Y. Xew York. etc., R. Co. ;!1 Barb. in wkich it wag held that where ro'.1e on the engine iu violation of the known rules of the company, and Was there injured, he could not recover, notwith. standing he wa'5 there witl} the assent of the en. gineer; and also the caf'C of Pittsbnrgh, etc., R. Co. v. 56 Pa. SI. 294. in which it was held that where a traveler 10 puts his elbow or his arm ont of the will dow voluntarily, without any quaJif,ring circumstances impelling him to do it, it is negligence in Ie j and where that is lhe stale or lhe evidence, it is the duty or the court to declare the act negligence in law." It may be observej that the doctrine of the case last cited has been denied in seyeral of the courts. Ante, ! 11. (1,) note. 2Downie Y. Hendrie, 45 Mich. 493,501.
692
that some cattle were down in the train behind them, and that he had better go and look after them. 'fwo men, who were sitting in the caboose when this remark was made, went with their pole, and, while one of them was in an exposell position, endeavoring to raise a steer which had fallen down in the car, an express train swept by, striking him anll causing severe injnry. It was held a case for the jury. 'fhe person injured was not, under the circumstances, guilty of contributory negligence. l
§ 13. 'WHAT IF PASSENGER AssmIEs EXPOSED POSITION AT REQUEST OF UNAUTHORIZED SERVA]'(T OF CARRIER. A brakeman on a freight train is not in oharge of the train, where there is also a conlluctor upon it, and has no power to give directions to other persons upon the train. Accordingly, where a boy 18 years of age got upon a freigllt train without the knowledge and consent of the persons in charge of the train, but, on being discovered, was permitted to remain tbere, and was required by a brakeman to help brake, allll assist in coaling the engine, and was told to go on top of one of the freight cars and adjnst some loose lumber which was about to fall off, and, while so doing, was thrown off the car ami hurt, in consequence of a piece of the lu lUbel' striking a P03t which the train was p:lssing. it was held that there coulll be no recovery of d,lIu'tges from the company. The ruling was placed on the ground that the brakeman, in giving the order, was not acting within the scope of his employment, amI accordingly that the railrold company was not liable. At the same time it was concelled that the boy. although he had paid no fare, was entitled to the rights of a The fact that he had gone into a dangerous and improper situation woulll not preclude him from recovering damages, since it did not appear that the Missouri statute, below quoted, whicll requirell the posting of printed regUlations in a conspiclloUS place to warn passengers not to rille in (langerous places on the train, hall been complied with. 2 The court quntes the hnguage of Ammw, J., in a Pennsylvania case," that the youth of the plaintiff" may excuse him from concurring negligence, but it cannot supply the place of negligence on the part of the company, or cunfer auUlOrity on one who has none." § H. STATUTOTIY HEGULATIOXS ox TilE St:D,TECT. Iu some of the states there are, or have been, statutury regulations on th;! subject, like the foliowing in .Jlissouri: "In case an}' passenger 0:1 any railroa'lshall be injured while on the platform of a car, or in any baggage, woo,l, or freight car, in violation of the printell regnlations of thecolllpany, posted up at the time in 0. conspicuous place inside of its passenger cars then in the U'ain, such company shall not he li:lble for the injury: prOVided, flairl company at the time furnish room inside the passenger cars sutlicient for the proper acc0mmodatioll of the passengers." 4 Under such a stat lite, it has been said: "The of the company is malle to depend upon a violation by the passenger of the printed regttlations posted up in lhe passenger cars only. They are not requirell to be posted up in a b"ggage car. It is presumed that no passenger will ever be fmUld there. * * * This statute proceells again upun the general principles of law in relation to contriblltory negligence; a!lll it supposes that the passenger who has had the warning of this notice, and who still ventures to place himself in a situation so dangerous as a baggage car. is to be considered as cont.ibuting by his own negligence to produce the injury, aud therefore that the company is 'iFo"ler v. B"ltimore, ele., R. Co. IS W. Va. 579. 2Sherman v.
etc., R. Co. 72 )10.62. v. Railro,ld Co. 69 POI. St. 216; S. C. 8 llm. Rep. 251. See, Sny,!er v. Hannibal, etc .· R. Co. 60 :Mo. 413; Towanda Coal Co. v. Beeman,83 Pa. St. Chic;.Igo, etc., H. Co . ....
C:l!'ey. 9 Brndw. 632, 639; etc., R. Co. S3 Ill. 4i/. Compare Pennsylvania R. Co. v. HO"lgland, 78 Ind. 203; a. C. 3 Am. &. R. Cos. 43';. iRev. St. :\oro. 1S-.j5, p 433. For a similar st:'l.t. ute in XewYol'k.see S. Y.lS50,c. 1401 4uj 3 l::tlm. St. at Lar£e, 1). 6;Jfj, § 46.
iN BE CADWELL.
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not to be held liable in such case." 1 And it is to be inferred from other portions of the opinion in the case just cited, that, where notices are posted in compliance with such a statute, the consent of the conductor to the act of the passenger in riding in an improper and dangerous place would not exonerate the latter from the imputation of contributory negligence. It has been held in New York that the company must strictly comply with the terms of such a statute in order to secure its benetit. 2 A notice that" passengers are forbidden to get on or off the car while in motion; or on or off the front platform; or on or off the side, except nearest the sidewalk,"-manifestly does not exempt the company from liability to a passenger for an injury sustained while merely riding upon the front platform. 3 SEY:lIOUlt D. THO:IIPSON. St. Louis. 1Higging v. Hannibal, etc., R. Co. 36 1\10.418, 435. 2Carroll v. New York, etc., R. Co. 1 Duer, 571; Clark v. Eighth Ave. R. Co. 32lJaru. 607; S. C. 36
N. Y.13:;; Colgrove v. Harlem, etc., R. Co 6 Duel', 382; S. C. 20 N. Y. 492. 3Nolaa v. Brooklya CIty, etc., R. Co. &1 N. Y.63.
In re
CADWELL
and others, Bankrupts. 1883,) ACTUAL AXD COX-
(Di,ltrict Court, N. D. New York. CREDITOR PnOYIXG CLABI-FnAUDULENT STRUCTIYE FHAUP-.
A crcditor who is gllllty of no actual fraud is not debarred from proving his debt for the reason that his preference has l.;cen set aside by the judgmcnt of the court for constructivc fraud only.
In Bankruptcy. George IV. Adams, for assignee. John Lansing, for creditor. COXE, J. 'fhis is an appeal from an order of the regIster expunging the proof of debt filed by the Jefferson County Nation:tl Bank, founded upon three judgments which had previously been declared preferential and void for constructive fraud only. Brown v. J(j[erson Co. Nat. Balik, 19 Blatchf. 315; S. C. 9 FED. REP. 258. The sale question is whether a creditor, who is guilty of no actual fraud, is debarred from praying his debt for the reason that his preference has been set aside by the judgment of the court. In August, 1877, the district court for the southern district of New York decided that there was no conflict between section 5084 of the Reyised Statutes and section 12 of the act of June 22, 1874; that a person who surrenders his preference under sectron 50.:34 may, even then, under section 12, be prevented from proving more than a moiety of bis debt, if guilty of actual fraud; that section 12 placecl another limitation upon the proof of debts, and did nothing more. In other words, that the amendment, instead of relaxing, made still harsher the terms of the original act. In re Stein, 16 N. B. R. 56D.