court to charge the jury that if in so doing in the night-time, a cripple with a stiff leg departs from a path which he knows is safe, and ventures hastily upon one whose condition he does not know, in order to reach the same point on the opposite side of the street, he is guilty of negligence, and cannot recover damages for injuries received by falling over an obstruction which he knew lay in his path."

The facts embodied in this point appear in the testimony of the plaintiff. He was a cripple with a stiff leg, the result of an earlier fracture. He had a safe path, which he had often traveled, along the sidewalk to the opposite side of the railroad, and thence to his work. He left this path to go hastily upon a route leading across the road and railroad in a diagonal line, and over a plank crossing, the condition of which he says he did not know. It was in the night-time, and he was without a light. In hastily crossing the railroad, which he knew to be in his path, he got off the crossing at the east end of the planking, stumbled among the rails, fell, and was injured. There was no controversy over any one of the facts grouped together in this point, and the answer affirming it left nothing for the jury.

It may be that the crossing did not extend, as it should have done, over all of the roadway available for passage, and that the company was guilty of negligence in leaving it in the condition in which it was at the time of the accident; but this point asked and the court gave an instruction that the facts stated showed the plaintiff to be guilty of negligence, and that he could not recover for that reason. A party cannot recover damages for an injury which, by the exercise of reasonable care, he might have avoided: Beatty v. Gilmore, 16 Pa. St. 463; 55 Am. Dec. 514; Pittsburgh Southern R. R. Co. v. Taylor, 104 Pa. St. 306; 49 Am. Rep. 580. Negligence is ordinarily a question for the jury, but where the facts are uncontroverted, their legal effect is for the court: Catawissa R. R. Co. v. Armstrong, 52 Pa. St. 282; Pittsburgh and Connellsville R. R. Co. v. McClurg, 56 Id. 294; McKee v. Bidwell, 74 Id. 218; City of Erie v. Magill, 101 Id. 616. All the facts affecting the question of contributory negligence were furnished by the plaintiff's testimony. What was their legal effect? This was the question presented by the tenth point, and, as we think, properly answered. If so, there was no question left which, if submitted to the jury, could relieve the plaintiff from the consequences of his own carelessness, and the bind

ing instruction asked for in the eleventh point should have been given.

Judgment reversed.

NEGLIGENCE IS QUESTION FOR JURY, EXCEPT WHERE THERE IS NO CONFLICT in the testimony, and the inferences to be drawn from it are clear and simple: Schmidt v. McGill, 120 Pa. St. 405; ante, p. 713, and note; Woodward v. Shumpp, 120 Pa. St. 458; ante, p. 716.

CONTRIBUTORY NEGLIGENCE WHICH IS PROXIMATE CAUSE OF INJURY will bar recovery: Hurt v. St. Louis etc. R'y Co., 94 Mo. 255; 4 Am. St. Rep. 374, and note.

ROMMEL V. SCHAMBACHER.

[120 PENNSYLVANIA STATE, 579.]

PROPRIETOR OF SALOON OR TAVERN, OPEN FOR ENTERTAINMENT OF PUBLIC, IS BOUND TO SEE THAT ONE WHO ENTERS IS PROTECTED, not only from the assaults or insults of those in his employ, but of the drunken and vicious men whom he may choose to harbor.

PROPRIETOR OF SALOON IS LIABLE FOR INJURIES SUSTAINED BY ONE WHO ENTERS THEREIN and becomes intoxicated, by reason of another, who also became intoxicated there, and who, in full view of the proprietor, attached a piece of paper to the former and set it on fire.

CASE by William Rommel, aged twenty, against Jacob Schambacher, to recover damages for injuries sustained by the plaintiff while in the defendant's saloon, by reason of one Edward Flanagan, an occupant of the saloon, who attached a piece of paper to the plaintiff and set it on fire. The declaration charged a liability of the defendant, as a tavern-keeper, to the plaintiff, as his guest, and also charged a liability under section 3 of the act of May 8, 1854, Pamphlet Laws, 663, "To protect certain domestic and private rights, and prevent abuses in the sale and use of intoxicating drinks," which provided that "any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this commonwealth." The plaintiff was nonsuited, and he now brings error.

Henry D. Wireman, for the plaintiff in error.

Charles H. Downing, for the defendant in error.

GORDON, C. J. From the evidence in this case, we gather the following facts: On the evening of the 9th of August, 1884, the plaintiff, William Rommel, a minor, entered the tavern of the defendant, Jacob Schambacher, and there found one Edward Flanagan; they both became intoxicated on liquor furnished them by Schambacher. Whilst the plaintiff was standing on the outside of the bar, engaged in conversation with the defendant, who was on the inside thereof, Flanagan pinned a piece of paper to Rommel's back and set it on fire. The consequence was that Rommel's clothes were soon in flames, and before they could be extinguished he was very badly injured. He brought the present suit to recover damages from the defendant for the injury thus sustained. The court below adjudged the facts as stated above to be insufficient to sustain the plaintiff's case, and directed a nonsuit. In this we think it made a mistake.

There is no doubt that the defendant, from the position he occupied, had a full view of the room outside of the bar, and did see, or might have seen, all that was going on in it. If, in fact, he did see Flanagan setting fire to the plaintiff, and did not interfere to protect his guest from so flagrant an outrage, his responsibility for the consequences is undoubted. If, on the other hand, he was guilty of making Flanagan drunk, or if he came there drunk, and Schambacher knew that fact, he was bound to see that he did no injury to his customers. All this a plain matter of common law and good sense, and does not depend on the act of 1854, or any other statute. Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well of those who are in his employ as of the drunken and vicious men whom he may choose to harbor.

To illustrate the principle here stated we need go no further than the case of Pittsburgh etc. R. R. Co. v. Pillow, 76 Pa. St. 510; 18 Am. Rep. 424. In the case cited, a drunken row occurred on board one of the defendant's cars, and during the quarrel a bottle was broken, and a piece of the glass struck the plaintiff, a peaceable passenger, in the eye, and put it out; held, that the company was responsible for the injury thus done. In the opinion of this court the following language was used: "The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or, if so permitted, should have been so

guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls." If, then, a railroad company is liable for the conduct of drunken men who may chance to board its cars, much more the tavern-keeper who not only permits drunken men about his premises, but furnishes liquor to make them drunk, and who is thus instrumental in fitting them for the accomplishment of just such an insane and brutal trick as that disclosed by the evidence of the case in hand.

The judgment of the court below is now reversed, and a new venire ordered.

LIABILITY OF ONE ENGAGED IN PUBLIO EMPLOYMENT FOR PERSONAL INJURIES SUSTAINED BY CUSTOMER FROM THIRD PERSON. -The liability of a master, whether engaged in a public occupation like that of an innkeeper or common carrier of passengers, or not, for injuries sustained through the torts of his servants is well settled: See Ware v. Barataria etc. Canal Co., 35 Am. Dec. 189, and note. But the question is entirely different where one is sought to be held responsible for a tortious act committed by another not in his employment. If there is any such liability, it must be because there is some duty resting upon the person sought to be charged towards the injured person. The principal case maintains the existence of such a duty in a saloon or tavern keeper towards his customers; and in doing so, it extends a doctrine that has been applied several times to common carriers of passengers. Thus in an action against a company engaged in the transportation of persons, by a passenger who was injured by the discharge of a musket dropped on the deck of the company's steamer by one soldier engaged in a struggle with another soldier, Shipman, J., in charging the jury, said: "The defend. ants were bound to exercise the utmost vigilance and care in maintaining order and guarding the passengers against violence from whatever source arising, which might reasonably be anticipated or naturally be expected to occur, in view of all the circumstances, and of the number and character of the persons on board": Flint v. Norwich etc. Transp. Co., 6 Blatchf. 158; 34 Conn. 554; affirmed in 13 Wall. 3. This is generally regarded as a correct statement of the law: See Cooley on Torts, 645; Schouler's Bailments and Common Carriers, sec. 643; Thompson's Carriers of Passengers, 308; compare 2 Shearman and Redfield on Negligence, sec. 512; and see Goddard v. Grand Trunk R'y, 57 Me. 202, 213, 2 Am. Rep. 39, 41, per Walton, J., adopted in Sherley v. Billings, 8 Bush, 147, 152, Chicago etc. R. R. v. Flexman, 103 Ill. 546, 550, Stewart v. Brooklyn etc. R. R., 90 N. Y. 588, 591, 43 Am. Rep. 185, 186. The court further held that the company was not excused from liability by the fact that it was compelled by the government to receive the soldiers on board, and that they were in charge of officers; certainly not after it had voluntarily received the plaintiff as a passenger, without notice to him of the enforced presence of the soldiers. In the recent case of Chicago etc. R. R. v. Pillsbury, 123 Ill. 9, 5 Am. St. Rep. 483, it was said that so far as the machinery and cars, the fitness of the road-bed, and the competency and faithfulness of the servants employed were concerned, a carrier of passengers by railway is obliged to use the highest reasonable and practical skill, care, and diligence; but as to the dangers and perils not

incident to the ordinary mode of travel, the liability is less stringent. The carrier must omit no care to discover and prevent injuries to passengers from dangers not incident to the ordinary mode of travel that is reasonable and practicable. The degree of care to be observed must depend in a large measure upon the attendant circumstances. In many cases, if the carrier observed ordinary care and diligence to discover and prevent injuries to passengers from such causes, it would be exonerated from liability; while in other cases, and under other circumstances, it would be the duty of the carrier to exercise the utmost care, skill, and diligence to protect the passengers from such injuries, so far as the same, by the exercise of such care, skill, and diligence, could have been reasonably and practicably foreseen and anticipated in time to prevent injury. In no case must the carrier expose the passenger to extrahazardous dangers that might readily be discovered or anticipated by all reasonable, practicable care and diligence. Perhaps there is no essential difference between these views and those of Shipman, J., quoted above. It was therefore held that the carrier was liable for injuries inflicted on a passenger by a mob, consisting of striking workmen, enraged against non-union men employed in certain iron-works, the latter having been taken on the same train and in the same cars with the passengers, the existence of the mob being well known, the liability to attack such as might reasonably have been inferred, and the carrier not having taken proper precautions for the protection of the passengers. Magruder, J., and Shelton, C. J., dissented, adhering to the view of the court on the original hearing. In conformity to the foregoing, it has also been held that a common carrier of passengers is bound to see that no harm comes to a passenger from a fellow-passenger, whose conduct and condition clearly show that he is a dangerous person, and likely to injure the other passengers: King v. Ohio etc. R'y, 22 Fed. Rep. 413. It is the duty of the employees of the company in charge of the train to keep such a person in close custody and disarm him, or remove him from the train: See Vinton v. Middlesex R. R., 11 Allen, 304; 91 Am. Dec. 714, and note; Railway Co. v. Valleley, 32 Ohio St. 345; 30 Am. Rep. 601; Lemont v. Washington etc. R. R., 1 Mackey, 180; 47 Am. Rep. 238; Atchison etc. R. R. v. Weber, 33 Kan. 543; 52 Am. Rep. 543. The employees of a railroad company constitute the police of the train, and the passenger, from the moment he enters the car, is entitled to look to them for protection in cases of assault growing out of the disorderly conduct of another passenger or passengers: Flannery v. Baltimore etc. R. R., 4 Mackey, 111. So if the conductor and brakeman of a train conspire with passengers thereon to remove a colored passenger from a car, in which he had a right to be, or see such passengers remove him, and make no effort to prevent it, or make no effort to repair the mischief by restoring him to his seat, the company will be liable: Murphy v. Western etc. R. R., 23 Fed. Rep. 637; and a somewhat similar case is Britton v. Atlanta etc. R'y, 88 N. C. 536; 43 Am. Rep. 749. In New Orleans etc. R. R. v. Burke, 53 Miss. 200, 24 Am. Rep. 689, the plaintiff, a passenger on the defendant's cars, was assaulted by other passengers, and appealed to the conductor for protection. The conductor, after asking the assailants to desist, became frightened and ran away, and made no further effort to protect the plaintiff, who was thereupon beaten and injured. It was held that the conductor having failed to use the means at his disposal to protect the plaintiff, the defendant was liable. So in Pittsburg etc. R. R. v. Pillow, 76 Pa. St. 510, 18 Am. Rep. 424, a passenger on a railway train was injured through a quarrel between two drunken men, who were also passen