GEORGIA SUPREME COURT.

Fish, P. J., delivered the opinion of the ten boarded the train at the place where court:

getting one foot upon the step, and slipped opinion of the court, said: "Whether one and fell off; that he did not know what who attempts to board a moving train is caused him to slip; that the steps were engaged in an act which is dangerous in its from 15 to 24 inches above the ground. He nature, or is an obvious risk of injury, deoffered to prove that his habit and custom pends upon the circumstances under which had always been to get off and on moving the act is attempted to be performed, the trains, and that every week during his four place at which the train is, the speed at years as a drummer, he had got on and off which it is moving, the position of the moving trains, not only every week, but party, his age and activity, and all other every day in the week; that, from his expe- circumstances which would be considered in rience in daily boarding moving trains, he determining whether an ordinarily prudent could ordinarily board a train moving 8 or person would, under such circumstances, at10 miles an hour in perfect safety; and, tempt at such a time and in such a place to from such experience, the proper way to board a train moving at such rate of speed. board them was as he attempted to do on It is not necessarily what would be done this occasion. The plaintiff also offered to by a particular individual under the cir prove by three witnesses that drummers, in cumstances stated, but what would be done the practice of their vocations, usually ac- ordinarily by a man in the exercise of due quire much experience and become quite ex- care and caution. If a man of ordinary prupert in boarding moving trains; that, as dence would have attempted, under the cirdrummers, they had each acquired much ex- cumstances, to board the train, then the atperience in boarding and dismounting mov-tempt would not be negligence. If, on the ing trains, and that the plaintiff had ac- other hand, a man of ordinary prudence quired great expertness in successfully would not have made the attempt, it would boarding moving trains; that, from the ex-be negligence, and a person engaged in such perience of the witnesses and from their observation of the plaintiff, he, in attempt ing to board the train in question at the place and under the speed it was going, was not unnecessarily exposing himself to danger or to obvious risk of injury; that, considering the rate of speed of the train, the | place and the circumstances under which plaintiff attempted to mount it, "the attempt was not one of obvious danger to an experienced man in boarding and dismounting moving trains, when he was as active and athletic and expert as Mr. Small was." All of this evidence was rejected by the court. It did not appear that any necessity or emergency existed for the plaintiff to board the moving train, but he attempted to do so merely to avoid the delay incident to missing that train. At the conclusion of the evidence submitted in behalf of the plaintiff, the court granted a nonsuit. The case is here upon the plaintiff's bill of exceptions, complaining of the exclusion of evidence and the grant of the nonsuit.

As will have been seen, the plaintiff had been permitted to testify, in effect, to what the excluded evidence, if admitted, would have tended to show; and clearly it was not permissible for the offered witnesses to testify that the plaintiff, on the occasion in question, did not unnecessarily expose himself to danger or obvious risk of injury. We will, however, consider the case as if the other portions of rejected testimony had been admitted. This is the second appearance of the case before this court. When here the first time (115 Ga. 455, 41 S. E. 628), Mr. Justice Cobb, in delivering the

an act would be exposing himself to danger
or to obvious risk of injury, within the
meaning of such terms when used in a policy
of accident insurance. See, in this connec-
tion, Suber v. Georgia, C. & N. R. Co. 96 Ga.
42, 23 S. E. 387; Killian v. Georgia R. &
Bkg. Co. 97 Ga. 732, 25 S. E. 384; Coursey
v. Southern R. Co. 113 Ga. 297, 38 S. E.
866." In view of the law thus announced as
applicabic to the case, the exception to the
grant of the nonsuit presents the question
whether or not it can be held, as matter of
law, that a reasonably prudent man, under
all the circumstances of the case, would not
have attempted to board the train. In our
opinion, a reasonably prudent man would
not, under the circumstances, have attempt-
ed to board this train. An attempt to do
so would necessarily amount to an exposure
to an easily seen or understood mischance
or harm. The hazard of such an attempt
would be obvious. In Travelers' Ins. Co. v.
Jones, 80 Ga. 541, 12 Am. St. Rep. 270, 7
S. E. 83, it was held: "During a dark and
rainy night, for a person with two packages
in his hands or arms to attempt, by choice,
to pass over a trestle which he knows to be
dangerous, other ways of travel being open
to him, is, on his part, 'voluntary exposure
to unnecessary danger, hazard, or perilous
adventure,' notwithstanding this
was his
usual way of travel, his usual route to his
home, and he had been going that way for
ten years, and many others went the same
way." In Roul v. East Tennessee, V. & G.
R. Co. 85 Ga. 197, 11 S. E. 558, a fireman
undertook, upon the order of the engineer,
to mount an engine which was running at
the rate of 6 to 12 miles an hour, and was

injured in so doing. He sued the railroad tion to, and not with, the direction in which company for damages, and upon the trial it was moving. It was held that the plainof the case a nonsuit was granted "because tiff was, as a matter of law, guilty of conthe act was so rash and dangerous that he tributory negligence. In Tuttle v. Travelwas not obliged to obey such an order, and lers' Ins. Co. 134 Mass. 175, 45 Am. Rep. if he did so it would be at his peril;" the 316, the policy sued on provided that no present chief justice saying in the opinion: claim should be made under it "when death "It seems to us that any man of common or injury may have happened in consequence sense would have known that it was a rash of exposure to any obvious or unnecessary and dangerous attempt." In Mayfield v. danger." It was held that no recovery Savannah, G. & N. A. R. Co. 87 Ga. 374, 13 could be had for the death of the insured, S. E. 459, the plaintiff undertook to mount caused by being struck by a railroad train, the rim, 11⁄2 inches broad, around the pilot while running on the track in front of it in of an engine, while it was moving at the the nighttime for the purpose of getting on rate of 4 or 5 miles an hour, and he fell or a train approaching in an opposite direcwas thrown off, and was hurt. In an action on a parallel track. In Lovell v. Accition against the railroad company, he was dent Ins. Co. (Q. B.) 3 Ins. L. J. 877, it nonsuited, and this court said his attempt was held that walking on a railroad to mount the pilot of the engine "was clear- track in a dark and rainy night, at ly an act of negligence, if not gross negli- | a time when the deceased knew that gence." In Murphy v. St. Louis, I. M. & S. trains were frequently passing both ways, R. Co. 43 Mo. App. 342, it was held that a constituted boy fourteen or fifteen years of age, active and unencumbered with baggage, who, at the invitation of the conductor, attempted to board the caboose of a freight train, where there were no obstructions in his way, and when the train was running at the rate of 6 or 8 miles an hour, was guilty, as a matter of law, of contributory negligence. In Heaton v. Kansas City, P. & G. R. Co. 65 Mo. App. 479, it appeared that the plaintiff was injured in attempting to board a steam railroad train while it was passing a station on a descending grade, and traveling at a rate of speed variously estimated, but by no one at less than between 6 and 7 miles an hour. He had been informed that it would not stop, and was told by the conductor to jump on. He was young and vigorous, and had been a constant traveler on railroads, yet, acting on the impulse of the moment, he sprang on the train in opposi 63 L. R. A.

"an obvious risk," within the meaning of the accident policy excepting the insurer from liability for injury or death arising from the insured "exposing himself to any obvious risk or danger;" that it is not enough that the deceased did not actually see the train coming; that the danger was certain, and ought to be present to the mind of a man of ordinary sense and prudence; that the words "obvious risk" designate, not only a risk which may be readily perceived by the eye or senses, but also one that may be perceived by the intellect. As in point, see Cornish v. Accident Ins. Co. L. R. 23 Q. B. Div. 453, and Smith v. Preferred Mut. Acci. Asso. 104 Mich. 634, 62 N. W. 990. The nonsuit was properly granted. Judgment affirmed.

All the Justices concur.

PENNSYLVANIA SUPREME COURT.

APPEAL by defendant from a judgment

of the Court of Common Pleas for Philadelphia County in favor of plaintiffs in an ticular state which they hold to be the governing law is not an unlawful interference with interstate commerce; and, of course, if that assumption is erroneous in any given case, the a. Intention of the parties generally; actual decision is vitiated, though even then when expressed, 513.

that involve interstate transactions proceed So far as the rights and obligations of the upon the assumption that the law of the par- respective parties to a carrier's contract de

action brought to recover the value of a | lading provided that “no carrier shall be liahorse injured while in defendant's possession for transportation. Affirmed. The facts are stated in the opinion. Messrs. Edwin J. Sellers, David W. Sellers, and John G. Johnson for appel

lant.

Mr. A. S. L. Shields for appellees.

ble for loss or damage not occurring on its own road, or its portion of the through route." The horse was carried safely by the initial carrier to the end of its line, and delivered to the defendant company, by whom it was brought to Philadelphia. At this point the horse was badly injured by the negligence of defendant's servants, and Potter, J., delivered the opinion of the the injuries thus received are the foundacourt: tion of this action. The defendant adThe plaintiffs in this case were the own-mitted liability, but claimed that the plainers of a valuable horse, which was shipped tiff was not entitled to recover in excess of by their agent from Albany, New York, to $100. In support of this claim, it relied Cynwyd, Pennsylvania. The contract for upon a printed form of a shipping contract, transportation was made in Albany with the which was signed by plaintiff's agent at the New York Central Railroad, acting for it-time of shipment, and retained by the carself and connecting carriers. The bill of rier. This contract contained a stipulation pend upon the terms of the contract itself, assuming that they are valid and unambiguous, there is no occasion for invoking any extrinsic law upon the subject. The necessity of invoking an extrinsic law, and therefore the necessity, in case of a contract involving foreign or interstate elements, of choosing the governing law, arises either when the terms of the contract are ambiguous and susceptible of construction; when the rights and obligations of the parties in addition to those created and imposed by the terms of the contract are concerned; or when the validity of the contract, or of certain stipulations therein, is involved.

According to the great weight of authority, the intention of the parties, expressed or presumed, is the ultimate criterion of the governing law. The majority of the cases adopt this criterion, not only when the question relates to the construction or interpretation of the terms of the contract, or of the rights and obligations of the parties outside the terms of the contract, but also when the question relates to the validity, in whole or in part, of the contract itself. Thus, the United States Supreme Court in the case of Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469, involving the validity of a stipulation limiting the carrier's common-law liability, said: "According to the great preponderance, if not the uniform concurrence, of authority, the general rule, that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country."

It will be observed that the language above quoted assumes that the intention of the parties, expressed or presumed, is the ultimate criterion of the governing law, notwithstanding that the question before the court was as to the validity of a stipulation in the contract. Most of the cases cited in subdivisions II. b, 1, 2, and 3 assume that the intention of the parties is the ultimate criterion of the governing law with respect to the validity of such a

stipulation, though, in the absence of an express stipulation in the contract disclosing the intention of the parties in this respect, they apply a subordinate rule based upon the presumed intention of the parties. In the following cases, which involve the validity of such a stipulation, the intention of the parties as to the ultimate criterion is clearly and expressly recognized, and the subordinate rule applied by them is expressly stated with the qualification that the circumstances do not indicate a different intention by the parties. The Henry B. Hyde, 82 Fed. 681; Hale v. New Jersey Steam Nav. Co. 15 Conn. 546, 39 Am. Dec. 398; Michigan C. R. Co. v. Boyd, 91 Ill. 268; Otis Co. v. Missouri P. R. Co. 112 Mo. 622, 20 S. W. 676; Grand v. Livingston, 4 App. Div. 589, 38 N. Y. Supp. 490, Affirmed in 158 N. Y. 688, 53 N. E. 1125; Ryan v. Missouri, K. & T. R. Co. 65 Tex. 13, 57 Am. Rep. 589.

And it will be observed that some of the cases cited in I. b, 2, (b), infra (see particularly Re Missouri S. S. Co. L. R. 42 Ch. Div. 321, 58 L. J. Ch. N. S. 721, 61 L. T. N. S. 316, 37 Week. Rep. 696), held that the ordinary subordinate rule resting upon the presumed intention was overcome by additional circumstances indicating a contrary intention.

It must be admitted, however, that there is much force in the suggestion made in HUGHES V. PENNSYLVANIA R. Co. that a contract fo: the carriage of goods is not one as to which the parties are entirely free to contract, if that suggestion is limited to matters that relate to the validity of a stipulation in the contract. The authorities above cited, however, seem to have firmly established this criterion as applicable to the validity of the contract, as well as to the construction or interpretation of its terms of the contract, and the rights and duties of the parties outside its terms.

Assuming, then, that the intention of the parties is the ultimate criterion of the gov erning law, it is obvious that, when that intention is clearly manifested by an express provision of the contract that it shall be governed by a certain law, the courts do not need to resort to any subsidiary principle or rule for the purpose of determining the gov erning law. It is true that in some cases (see infra, II. b, 2) the courts have refused to apply the law so designated, but that was because it was regarded in the particular instance as contrary to the public policy of the