dent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them." And further, at page 548, he said: "They [cases criticised] entirely ignore the true ground of responsibility as depending on the actual negligence of the carrier. There is no such thing as implied negligence, when there is none in fact.” Mr. Thompson, after referring to this case, justly says: "But we must ignore the teachings of nearly all the cases, unless we conclude that a court is warranted, in all cases of this kind, in telling the jury that the carrier is bound to exercise for the safety of his passengers a higher degree of care than that which springs out of ordinary social obligations:" Thomp. Carr. Pass. 208.

LIABILITY OF CARRIER FOR DEFECTS IN VEHICLES, ROADWAY AND OTHER APPLIANCES.—It is the duty of carriers of passengers to exercise a high degree of care in providing all appliances necessary for the safe carriage of those whom they undertake to carry. And if injuries happen to their passengers from their failure to perform this duty, they will be liable therefor. Thus railway companies are liable for not keeping their roadways in good traveling order: Virginia Cent. R. R. Co. v. Sanger, 15 Gratt. 230, 236; Union Pac. R. W. Co. v. Hand, 7 Kan. 380; Nashville & C. R. R. Co. v. Messino, 1 Sneed, 220; Hanley v. Harlem R. R. Co., Edm. Sel. Cas. 359; Great W. R. W. Co of Canada v. Braid, 1 Moo. P. C. C. (N. S.) 101. Stage proprietors are liable for failing to provide safe coaches and careful and competent drivers: Hyman v. Nye, L. R., 6 Q. B. 685; S. C., 29 Moak's Eng. R. 769; Tuller v. Talbot, 23 Ill. 357; Sawyer v. Sauer, 10 Kan. 466; Story on Bailm., secs. 592, 593. A carrier of passengers is liable if he does not use the utmost care and skill in the manufacture of his vehicles: Thomp. Carr. Pass. 221; Пlegeman v. Western R. R. Corp., 13 N. Y. 9; Caldwell v. New Jersey S. Co., 47 Id. 282; Meier v. Pennsylvania R. R. Co., 64 Pa. St. 225; S. C., 3 Am. Rep. 581. In the case last cited, Agnew, J., delivering the opinion of the court, said: "Railroads must keep pace with science and art and modern improvement, in their application to the carriage of passengers." And where a manufacturer of vehicles has failed to apply proper tests to discover or guard against defects in the vehicles, his negligence will be imputed to the carrier who uses them. And it is not sufficient to exonerate the carrier from liability, to show that the manufacturer was of good repute in his business: Carroll v. Staten Island R. R. Co., 58 N. Y. 126; S. C., 17 Am. Rep. 221; Caldwell v. New Jersey S. Co., 47 N. Y. 282; Hegeman v. Western R. R. Corp., 13 Id. 9. But see, contra, Grand Rapids & I. R. R. Co. v. Huntley, 38 Mich. 537.

But the carrier is not liable for latent defects which could not have been discovered by the most careful and thorough examination: Richardson v. Great Eastern R. W. Co., L. R., 1 C. P. Div. 342; Stokes v. Eastern Counties R. W. Co., 2 Fost. & Fin. 691; Pittsburgh C. & St. L. R. W. Co. v. Thompson, 56 Ill. 138; Ladd v. New Bedford R. R. Co., 119 Mass. 413; S. C., 20 Am. Rep. 331, citing the principal case; Thomp. Carr. Pass. 215.

LIABILITY FOR NEGLIGENT MANAGEMENT OF VEHICLES.-Carriers are bound to manage their vehicles in such a manner as to secure the safety of their passengers. And, therefore, a railway company is liable for negligence in suddenly starting a train after it has once stopped, without allowing a reasonable time for passengers to get on or off: Curtis v. Detroit & M. R. R. Co., 27 Wis. 158; Doss v. Mo. K. & T. R. R. Co., 59 Mo. 27; S. C., 21 Am. Rep. 371; Keating v. N. Y. Cent. R. R. Co., 49 N. Y. 673; Mitchell v. Western & A. R. R. Co., 30 Ga. 22; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228; Gillis v. Pennsylvania R. R. Co., 59 Pa. St. 143; Rose v. North E. R. W. Co., L. R.,

2 Exch. Div. 248; Robson v. North E. R. W. Co., L. R., 2 Q. B. Div. 85; Southern R. R. Co. v. Kendrick, 40 Miss. 374. Carriers of passengers are bound to repress all disorderly and indecent conduct in their cars, and are liable for any injuries that result to passengers from such conduct: Pittsburgh & C. R. R. Co. v. Pillow, 76 Pa. St. 510; S. C., 18 Am. Rep. 424; Pittsburgh, F. W. & C. R. W. Co. v. Hinds, 53 Id. 512; Flint v. Norwich & N. Y. F. Co., 34 Conn. 554; New Orleans, St. L. & C. R. R. Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep. 689; Putnam v. Broadway & Seventh Av. R. R. Co., 55 N. Y. 108; S. C., 14 Am. Rep. 190. Gordon, J., delivering the opinion of the court in the case of Pittsburgh & C R. R. Co. v. Pillow, 76 Pa. St. 513; S. C., 18 Am. Rep. 427, said: "We can not perceive the force of the argument of the counsel for the plaintiff in error, wherein he endeavors to raise a distinction between accidents arising from negligence in the equipment or management of the train, and those arising from the misconduct of passengers upon it. If the employees of the road had no control or power over passengers, this argument would be sound. But they have such power, and they are just as responsible for its proper exercise as they are for the proper running of the train." So, too, carriers are liable for negligence in overloading their vehicles: Derwoort v. Loomer, 21 Conn. 245; Maury v. Talmadge, 2 McLean, 157. In Pennsylvania R. R. Co. v. Roy, 102 U. S. 451, the railroad company were held liable for the negligent act of its porter, in leaving the berth of a sleeping-car in such a condition that it fell upon the plaintiff and injured him. Railroad companies may make reasonable regulations respecting passengers traveling on its lines. See note to Commonwealth v. Powers, 41 Am. Dec. 471. And they are liable for injuries to passengers resulting from a failure on the part of their servants to conform to their own rules: Thomp. Carr. Pass. 224; Pittsburgh, F. W. & C. R. W. Co. v. Hinds, 53 Pa. St. 512; New Orleans, St. L. & C. R. R. Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep. 689; Putnam v. Broadway & Seventh Av. R. R. Co., 55 N. Y. 108; S. C., 14 Am. Rep. 190; Holly v. Atlanta S. R. R. Co., 61 Ga. 215; Chicago, B. & Q. R. R. Co. v. George, 19 Ill. 510; Chicago & N. W. R. W. Co. v. Taylor, 69 Id. 461; S. C., 18 Am. Rep. 626; Vose v. Lancashire etc. R. W. Co., 4 Hurl. & Norm. 728.

LIABILITY OF CARRIERS FOR INJURIES caused by the wrongful acts of their servants: See note to Ware v. Barataria & L. Canal Co., 35 Am. Dec 201.

HAPPENING OF ACCIDENT AS PRIMA FACIE Evidence of Negligence.— Where a person, suing a carrier of passengers for an injury, shows that the injury happened to him, without fault or negligence on his part, in consequence of the breaking or failure of the vehicle, roadway, or other appliances owned or controlled by the carrier in making the transit, he makes out a prima facie case for recovery of damages: Thomp. Carr. Pass. 210; Ang. on Carr., sec. 569; Yerkes v. Keokuk Packet Co., 7 Mo. App. 265; Lemon v. Chanslor, 68 Mo. 340; Carpue v. London & B. R. W. Co., 5 Ad. & El. (N. S.) 747; Feital v. Middlesex R. R. Co., 109 Mass. 398; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408; Great Western R. W. of Canada v. Baird, 1 Moo. P. C. C. (N. S.) 101; Toledo, W. & W. R. W. Co. v. Beggs, 85 Ill. 80; Pittsburg, C. ♣ St. L. R. W. Co. v. Thompson, 56 Id. 138; Baltimore & C. R. R. Co. v. Wightman, 29 Gratt. 431; Sullivan v. Philadelphia & R. R. R. Co., 30 Pa. St. 234; Meier v. Pennsylvania R. R. Co., 64 Id. 230; Fairchild v. California Stage Co., 13 Cal. 599; Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 Wall. 341. In delivering the opinion of the court in Meier v. Pennsylvania R. R. Co., supra, Agrew, J., said: "Prima facie, where a passenger being carried on a train is injured without fault of his own, there is a legal pre

sumption of negligence, casting upon the carrier the onus cf disproving it." But where the plaintiff's own evidence shows that the act of God was an operating, and perhaps a sufficient cause of the accident, this rule does not apply: Gillespie v. St. Louis, K. C. & N. R. W. Co., 6 Mo. App. 554; McClary v. Sioux C. & P. R. R. Co., 3 Neb. 44. The reason assigned for the adoption of the rule, that the happening of the accident is prima facie proof of the negligence of the carrier, is the fact that, from the very nature of things, the means of proving due care and diligence on his part are more within his power than are the means of proving negligence, in the power of the party injured. Mr. Thompson, in discussing this question, says: "The law, looking both to the convenience and justice of the case-convenience, because the evidence is generally in the possession of the defendant and not in that of the plaintiff; and justice, because the plaintiff should not be required to give evidence as to facts which are known to the defendant and not to him, and which the defendant is interested in withholding from him-requires the defendant to prove affirmatively that such care and skill were exercised:" Thomp. Carr. Pass. 211.

CONTRIBUTORY NEGLIGENCE OF PASSENGER.-A passenger is bound to exercise ordinary care and prudence to avoid injury, and if, by his misconduct, he fails to use such care and thereby directly contributes to his injury, he can not recover: Thomp. Carr. Pass. 257; Shearm. & Redf. on Neg., sec. 25 et seq.; 2 Thomp. on Neg. 1148; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228. See also note to Hartfield v. Roper, 34 Am. Dec. 273, and the cases there cited and collected, on the general subject of contributory negligence. In this connection we shall confine our attention to the cases in which the question of what is or what is not contributory negligence, has been consid. ered. It is contributory negligence on the part of a passenger to attempt to get on or off a train while it is in motion: Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228; Dougherty v. Chicago, B. & Q. R. R. Co., 86 Ill. 467; Damont v. New Orleans & C. R. R. Co., 9 La. Ann. 441; Railroad Co. v. Aspell, 23 Pa. St. 147; S. C., Thomp. Carr. Pass. 252. It is contributory negligence for a passenger to attempt to get on to a car while it is slowly moving past a station where he has purchased a ticket: Phillips v. Rensselaer & S. R. R. Co., 49 N. Y. 177; Knight v. Pontchartrain R. R. Co., 23 La. Ann. 462; Harper v. Erie R. W. Co., 32 N. J. L. 88; Chicago & N. W. R. W. Co. v. Scates, 90 Ill. 586. But it is not contributory negligence for a passenger to jump off a train which is moving so slowly that danger in doing so is not apparent to a reasonable person, and particularly where the passenger acts under instructions from the company's conductor or brakeman: Lambeth v. North Carolina R. R. Co., 66 N. C. 494; Filer v. New York C. R. R. Co., 68 N. Y. 124; S. C., 10 Am. Rep. 327; Wyatt v. Citizens' R. W. Co., 55 Mo. 485. Whether or not a railroad company which fails to bring its train to a full stop at a station, shall be held liable in damages for an injury sustained by a passenger in attempting to get off, will depend upon whether, under all the circumstances, it was prudent for him to make the attempt: Price v. St. Louis, K. C. & N. R. W. Co., 72 Mo. 414. "Even when a train is distinctly under way, there are cases where it must be left to the jury to say whether the danger of going aboard was so apparent that it would be culpable negligence:" Agnew, J., delivering the opinion of the court in Johnson v. West Chester & P. R. R. Co., 70 Pa. St. 357, 364; Illinois Cent. R. R. Co. v. Able, 59 Ill. 131; Georgia R. R. & B. Co. v. McCurdy, 45 Ga. 288; S. C., 12 Am. Rep. 577. Whether or not there has been contributory negligence in a case is generally a question for the jury, upon a view of all the facts: Jamison v. San José & S. C. R. R. Co., 55 Cal. 593. Where a railroad

company, by the negligence of its servants, compels a passenger to choose between incurring some risk in leaping from the train, and being exposed to other inconveniences to which it has no right to expose him, and he is injured in getting off under circumstances which would not prevent a person of ordinary prudence from doing so, the company will be liable: Delamatyr v. Milwaukee & P. D. C. R. R. Co., 24 Wis. 578. And a passenger may, without negligence, leap from a vehicle in order to save himself from actual or reasonably apprehended peril: Jones v. Boyce, 1 Stark. 493; S. C., Thomp. Carr. Pass. 246; Stokes v. Saltonstall, 13 Pet. 181; S. C., Thomp. Carr. Pass. 183; Frink v. Potter, 17 Ill. 406; Eastman v. Sanborn, 3 Allen, 596, citing the principal case.

do

WHEN NAME OF STATION IS CALLED out by the servant of a railroad company, the passenger has a right infer that the first stoppage of the train will be at that station, and he will not be guilty of such contributory negli gence as will bar a recovery, by construing such stoppage as an invitation to alight: Central R. R. Co. v. Van Horn, 38 N. J. L. 133; Milliman v. New York C. & II. R. R. R. Co., 66 N. Y. 642; Cockle v. London & S. E. R. W. Co., R., 7 C. P. 321, 326. In the last case cited, Cockburn, C. J., said: “But It appears to us that the bringing up of a train to a final stand-still for the purpose of the passenger's alighting, amounts to an invitation to alight, at all events, after such a time has elapsed that the passenger may reasonably infer that it is intended that he should get out, if he purposes to alight at that particular station. But otherwise, if the passenger had no reason to expect that the stoppage was final:" Lewis v. London C. & D. R. W. Co., L. R., 2 Q. B. 66.

In the case of Gee v. Metropolitan R. W. Co., L. R., 8 Q. B. 161, the plaintiff, being a passenger on defendants' railway, got up from his seat and put his hand on the bar which passed across the window, with the intention of looking out to see the signal lights at the next station, and the pressure caused the door to fly open, and he fell out and was injured. There was no other evidence as to the construction of the door and its fastenings. The court of exchequer chamber held that the plaintiff was not guilty of contributory negligence so as to prevent his recovery. Cockburn, J., said: “The passenger did nothing more than that which came within the scope of his enjoyment while traveling, without committing any imprudence. In passing through a beautiful country, he certainly is at liberty to stand up and look at the view; not in a negligent, but in the ordinary manner of people traveling for pleasure." But in Adams v. Lancashire etc. R. W. Co., L. R., 4 C. P. 739, the door of the plaintiff's carriage flew open three times, and was by him shut each time without accident. The weather was fine, and there was room in the carriage for the plaintiff to sit away from the door. The door flew open a fourth time, about three minutes before the train came to a station, and in endeavoring to shut it the plaintiff fell out and was injured. The court held that he could not recover. When a railroad company has been in the habit of receiving and discharging passengers at places other than their regular stations, it is not negligence for passengers to get on or off at those places, while the train is standing still, and there is no apparent danger in so doing: Keating v. N. Y. Cent. & H. R. R. R. Co., 49 N. Y. 673; Mitchell v. Western & A. R. R. Co., 30 Ga. 22.

RIDING IN UNAuthorized PosiTION is generally regarded as proof of contributory negligence. As where a passenger rides with part of his person protruding beyond the base of an open window, while the train is in motion: Todd v. Old Colony & F. R. R. Co., 7 Allen, 207; Louisville & N. R. R. Co. v. Sickings,

5 Bush, 1; Indianapolis & C. R. R. Co. v. Rutherford, 29 Ind. 82; Pittsburgh & C. R. R. Co. v. Andrews, 39 Md. 329; S. C., 18 Am. Rep. 568; Holbrook v. Utica & S. R. R. Co., 12 N. Y. 236; Pittsburgh & C. R. R. Co. v. McClurg, 56 Pa. St. 294. In the case last cited, Thompson, C. J., delivering the opinion of the court, said: "A passenger on entering a railroad car, is presumed to know the use of a seat and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use; the seat he may occupy in any way most comfortable to himself; the window he has a right to enjoy, but not to occupy. Its use is for the benefit of all, not for the comfort alone of him who has by accident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority; and if he allow it to protrude out, and is injured, is this due care on his part? He was not put there by the carrier, nor invited to go there; nor misled in regard to the fact that it is not a part of his seat, nor that its purposes were not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and liable to be broken, without his ability to know whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the position voluntarily or thoughtlessly taken in a window, by contact with outside obstacles or forces, it can not be otherwise characterized than as negligence, and so to be pronounced by the court." But see contra, Spencer v. Milwaukee & P. D. C. R. R. Co., 17 Wis. 487; Chicago & A. R. R. Co. v. Pondrom, 51 Ill. 333, decided under the Illinois rule of comparative negligence.

In Pennsylvania R. R. Co. v. Langdon, 92 Pa. St. 21, it was decided that it is contributory negligence on the part of a passenger to ride in the baggage. car, contrary to a known rule of the company. Mr. Justice Paxson, delivering the opinion of the court in that case, after reviewing all the decided cases on this subject, said: "I am not aware that it has been decided in any well-considered 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 the assent of the conductor is sufficient 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 may neglect to enforce 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 officials 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 a baggage-car, in violation of the rules, does so at his own risk, we shall have fewer accidents of this description." But in Jacobus v. St. Paul & M. R. R. Co., 20 Minn. 125, it was decided that even though the passenger is duly informed of a regulation excluding passengers from the baggage-car, yet if he is suffered to remain there, he does not do so at his peril; the com pany is still bound to exercise the highest degree of care for his safety. See also Watson v. Northern R. W. Co., 24 Upper Canada Q. B. 98; Carroll v. New York & N. H. R. R. Co., 1 Duer, 571. Voluntarily and unnecessarily standing on the platform of a train while in motion is such negligence as will prevent recovery by a passenger for an injury received by him while in that position: Hickey v. Boston & L. R. R. Co., 14 Allen, 429; Quinn v. Illinois C. R. R. Co., 51 Ill. 495; Buel v. N. Y. Cent. R. R. Co., 31 N. Y. 314. Passen.