§ 972. § 973. Injuries to passengers-The carrier not an absolute insurer. § 975. Unprecedented accidents. § 976. Presumption of negligence. § 977. Contributory negligence. § 978. Intersecting roads-Thorogood v. Bryan, denied. § 979. Intoxication as contributory negligence. § 930. § 991. Injuries from protruding one's arm from a car window. § 982. Injuries from the carrier's failure to provide lights at its stations and platforms. § 987. Boarding and alighting from trains in motion-(a). Contributory negligence. § 988. (b). Contributory negligence not presumed from the act itself. § 989. (c). Sundry examples. § 991. § 992. § 993. Premature starting of trains. Sudden jerking of cars and trains-(a). The carrier's negligence. § 994. (b). Not contributory negligence, there being no seat or room in the car. § 995. (c). Not contributory negligence when in the passenger's line of duty, or when acting under the direction of the company's servant. § 996. Defective appliances for transportation § 997. The same subject, continued-The passenger's knowledge of the § 998. § 999. $1000. defect. Injuries aris ng from directions of the carrier's employees. Warnings of danger. $1001. The carrier's liability for assaults and insults-(a). In general $1002 (b). By servants of the carrier-Scope of employment. 1004. § 1003. (c) The carrier's peculiar obligation to female passengers. $ 1905. § 1006. Connecting carriers--Through tickets. $ 1007. § 1008. Sleeping and parlor cars. Effect of consolidation, lease and running privileges. § 1009. Measure of damages. § 110. Injuries resulting in death. 968. Injuries to property by fire.-A railway company is liable in damages for negligently setting fire to property along its route.' And an allegation in a complaint that premises were set on fire by sparks from a locomotive is upheld by proof that it was communicated from other premises so ignited. While the emission of sparks from its locomotives does not in itself constitute negligence, yet proof that fire was communicated from a locomotive establishes a prima facie case of negligence, and throws the burden of proof upon the company. To rebut the presumption, it may adduce evidence of the competency and careful habits of its engineer and fireman, and of the fact that its engine was of a new and approved make, furnished with a proper spark-arrester, and had undergone a due inspection. Or it may set up the contributory negligence of the property owner; as, for example, in leaving cotton unprotected from sparks on the railway platform. But it is no defense to an action for fire negligently caused by a railway com 6 9 7 8 pany, that the person complaining permitted the natural growth of grass and stubble to remain on his premises. And in a case where varnish and benzine, placed out-of-doors at a varnish factory, became ignited from a locomotive which the railway company had negligently failed to provide with a proper spark-arrester, the manufacturer was held free from contributory negligence. In Indiana, when a person sues a railway company for injury to his property by fire, it is not enough for him tɔ allege that he was free from fault, but he must aver an absence on his part of contributory negligence. A railway company is not necessarily guilty of negligence in permitting grass and weeds to accumulate on its right of way.' 10 And it is insufficient to show negligence on the part of a railway company that it permitted inflammable material to gather on the right of way, in a suit against it for loss by fire alleged to have been induced by the negligent running of its locomotive." But it has been held a sufficient averment of negligence to allege that the company negligently permitted dry trash to gather along the road, that it did not use a spark-arrester, and that the netting on the smoke-stack of the engine was defective so as to permit an escape of sparks of fire, which were carried into the trash, and into the adjoining fields of the plaintiff, and by which the same became ignited. The plaintiff may show that other fires were started by the locomotive complained of during the same trip,'3 and that it was then taken to the company's shop for repairs. If an engine get out of repair at a point where there are no means of putting it in good condition again, the company mut stop it at the next station, and may not run it with increased danger to the next repair-shops." 15 1 Minn. Cen. Stat. (1878) ch. 34, § 60; Conn. Session Laws of 1881, ch. 92, and cases cited infra. 2 Butcher v. Vaca Valley & C. L. R. R. Co. 67 Cal. 518: Chicago etc. R. R. Co. v. Pennell. 110 Ill. 435; Simmonds v. New York etc. R. R. Co. 52 Conn. 264; 52 Am. Rep. 587. 3 Texas etc. R'y Co. v. Medaris, 64 Tex. 92. 4 Huff v. Missouri Pacific R'y Co. 17 Mo. App. 356; Crews v. Kansas City etc. R. R. Co. 13 Mo. App. 332; Wise v. Joplin R. R. Co. 85 Mo. 178; Nickern v. Chi ago etc. R'y Co. 22 Fed. Rep. 811. Cf. Mobile etc. R. R. Co. v. Gray, 12 Miss. 3.3. 5 Patton v. St. Louis & S. F. R'y Co. 87 Mo. 117. But see Huff v. Missouri Pacific R'y Co. 17 Mo. App. 356. 6 Texas etc. R'y Co. v. Tankersley, 63 Tex. 57. Cf. Beach on Con. tributory Negligence, §§ 62, 63. 7 Patton v. St. Louis & S. F. R'y Co. 87 Mo. 117; 56 Am. Rep. 446. 8 Kalbfleisch v. Long Island R. R. Co. 102 N. Y. 520; 55 Am. Rep. 832. 9 Wabash etc. R'y Co. v. Johnson, 96 Ind. 40, 44, 62. 10 Texas & Pacific R'y Co. v. Medairs, 64 Tex. 92, But see Clarke v. Chicago etc. R'y Co. 33 Minn. 359. 11 Carter v. Kansas City etc. R'y Co. 65 Iowa, 287. 12 Louisville, N. A. & C. R'y Co. v. Parks, 97 Ind. 307. 13 Patton v. St. Louis & S. F. R'y Co. 87 Mo. 117; Butcher v. Vaca Valley etc. R. R. Co. 67 Cal. 518; Green Ridge R. R. Co. v. Brinkman, 64 Md. 52; 51 Am. Rep. 755. 14 Butcher v. Vaca Valley etc. R. R. Co. 67 Cal. 518. 15 Texas & Pacific R'y Co. v. Tankersley, 63 Tex. 57.⚫ § 969. Injuries to cattle.—The liability of railway companies for injuries to cattle straying upon their tracks is largely dependent upon statutory regulation.1 In most of the States, railways are required by statute to sound signals of warning at crossings, and upon the appearance of any obstacle upon the track; and if cattle were injured through the defendant's failure to do so, a prima facie case of negligence is made out, and the burden of proof upon it to show due care on its part, or contributory negligence on the part of the owner of the cattle.3 It is immaterial that the animals, in all probability, would not have heeded the warnings.* is 2 6 The question of negligence and contributory negligence in actions for the killing of live-stock turns, also, largely upon the fence laws of the State, whether they require the owners of cattle to fence them in, or whether it is the duty of the railway company to fence them out. No recovery can be had if the owner has permitted them to run at large contrary to law. He is chargeable with contributory negligence,5 except where he can show that they escaped notwithstanding his fulfillment of his obligation to maintain lawful fences. On the other hand, where the duty of fencing its right of way is imposed by statute upon the railroad, its failure to do so and the fact of the injury being shown, a presumption of negligence on its part arises, which may be rebutted, however, by showing that it was under no obligation to maintain fences at the place where the cattle began to stray upon the track, or that a defect in the fence was of recent occurrence, and a reasonable time for repairing it had not elapsed." 8 1 See Md. Code, art. 77, §1; Ga. Code, §§ 1444-1454; Miss. Act of March 13, 1884; Miss. Code (1888), § 1059; Mo. Rev. Stat. (1879) § 809, 2124; Kans. Comp. Laws (1879), ch. 84, art. 2; Kans. Comp. Laws (1879), pp. 784, 785, $$ 4915-19; Ind. Rev. Stat. (1881) § 4025 et seq.; Iowa Code (1873), § 1288 et seq.; Wis. Rev. Stat. § 1810; Ill. Acts of 1874, § 1 et seq.; Neb. Comp. Stat. (1885) ch. 72; Ala. Code, § 1711. 2 Missouri Pacific R'y Co. v. Stevens, 35 Kan. 622; Cincinnati etc. R'y Co. v. Hiltzhauer, 99 Ind. 486; Persinger v. Wabash etc. R'y Co. 82 Mo. 196. Cf. Hilferty v. Wabash etc. R'y Co. 82 Mo. 90; Cathcart v. Hannibal etc. R'y Co. 19 Mo. App. 113. 3 Milburn v. Kansas City etc. R. R. Co. 86 Mo. 104, where the owner saw the danger, and might have saved his cattle, but relied upon the signals of warning. He was held guilty of contributory negligence. See Beach on Contributory Negligence, §§ 224, 233, 240, 242. 4 Kendrick v. Chicago etc. R. R. Co. 81 Mo. 521. 5 Vanhorn v. Burlington etc. R'y Co. 63 Iowa, 67; Lyons v. Terre Haute etc. R. R. Co. 101 Ind. 419; Carey v. Chicago etc. R'y Co. 61 Wis. 71. See Beach on Contributory Negligence, §§ 237, 238. 6 Moriarty v. Central Iowa R'y Co, 64 Iowa, 696; Missouri Pacific R'y Co. v. Johnson, 35 Kan. 58. |