trict court should have sustained defendant's motion to direct a verdict in its favor.

Reversed.

Getting Upon Moving Cars Amounts to Contributory Negligence.The conduct of a passenger in running after or alongside of a train which has attained a considerable degree of speed, and attempting to climb on board of it, is such contributory negligence as will defeat an action for damages in case of injury. Chicago & N. W. R. Co. v. Scates, 90 Ill. 586; Knight v. Pontchartrain R. Co., 23 La. Ann. 462; Hubener v. New Orleans, etc., R. Co., 23 La. Ann. 492; Phillips v. Rensselaer, etc., R. Co., 49 N. Y. 177; Harper v. Erie R. Co., 32 N. J. L. 88; Wabash, etc., R. R. Co. v. Rector, 9 Am. & Eng. R. R. Cas. 264.

But see, Johnson v. Westchester, etc., R. Co., 70 Pa. St. 357; Swigert v. Hannibal & St. Joe R. R. Co., 75 Mo. 475, s. c. 9 Am. & Eng. R. R. Cas. 322; Kelley v. Chicago, M. & St. P. R. Co., 2 Am. & Eng. R. R. Cas. 65.

CHICAGO, ST. LOUIS & NEW ORLEANS R. R. Co.

v.

TROTTER.

(61 Mississippi Reports, 417.)

In an action against a railroad company to recover damages for injuries sustained by a party who fell from the platform of a car which was standing at the depot, while attempting to enter the same as a passenger, it was error to instruct the jury that if the fall "could have been averted by the skill or care of the defendant or its servants, the plaintiff was entitled to

APPEAL from the Circuit Court for Montgomery county.

The appellee, while attempting to enter a passenger coach of the appellant company in the night time, fell from the platform of the car and received injuries on account of which she brought suit and recovered a verdict for $7,500. It was a starlight night in August. The natural light was sufficient to enable persons to move about in any direction without difficulty. There were no lights (lamps) on the platform of the depot, but the cars were as well lighted as passenger cars usually are. Other persons embarking at the same place and time with the appellee got on the train without difficulty. Appellee was an inexperienced country girl who had never been on a train before. She got upon the platform of the car in a crowd, having in her hands a fan and a parasol, and while there took from her father a large hand trunk. And thus incumbered, in the confusion and excitement, slipped or was pushed off of the platform on the side opposite the one she had ascended, and falling down an embankment of several feet dislocated and permanently injured her arm. The train was not

in motion at the time of the accident.

On the trial the court gave among others the following instructions for the plaintiff :

"(8) The court instructs the jury that a railroad company, as common carrier of passengers, is required to have sufficient force of competent, skillful, and attentive servants to attend their trains with safety, and if the jury believe from the evidence that the plaintiff acted with ordinary prudence, and the injury could have been averted by skill or care of defendant or defendant's servants, then such want of skill or attention is negligence on the part of the defendant, and the jury will find for the plaintiff.”

"(9) Railroad companies as common carriers of passengers are required to use the utmost care and skill for the preservation of the lives and limbs of all passengers; and the jury are authorized to consider in making up their verdict the character of the passenger, and if they believe from the evidence that plaintiff acted with ordinary prudence, and if they further believe from the evidence that the injury could have been averted or prevented by the exercise of skill and attention on the part of the defendants or their servants in receiving a female passenger on their trains, then the jury will find for the plaintiff."

The giving of these instructions is assigned for error.
W. P. & J. B. Harris, for the appellant.
Calhoon & Green, for the appellee.

CAMPBELL, C. J.-The eighth and ninth instructions for the appellee should not have been given. They announced that if the fall of the plaintiff could have been averted by the skill or care of the defendant or its servants the plaintiff was entitled to recover. This made the defendant responsible if by any precaution the mishap to the plaintiff might have been prevented, and although the jury was instructed at the instance of the defendant that it was not required of defendant to have persons at the entrance to the car to assist the plaintiff on and keep her from falling, it is manifest that the jury took license from the eighth and ninth instructions for the plaintiff to render a verdict which is clearly wrong. The evidence shows that the cars of the defendant were as well lighted as usual or necessary, and that the fall of the plaintiff was chargeable not to any want of facilities for a safe entrance to the car, but to the haste and excitement incident to her first experience in entering a railroad car, and a misstep consequent on her confusion in her new situation. The testimony fails to show any fault on the part of the appellant on the occasion of the mishap of the appellee, and it would be spoliation through the aid of the law to permit a recovery by the appellee for the consequence of her own want of experience and care when no blame is imputable to the appellant with respect to her mis'fortune.

The testimony strongly suggests that this was her own view of the matter when it occurred, and that the idea of receiving damages for it was a subsequent conception, and originated not with her, but another.

Judgment reversed and a new trial awarded.

SNOW

v.

FITCHBURG RAILROAD COMPANY.

(136 Massachusetts Reports, 552.)

A passenger on a steam railroad, who, while waiting in a proper place and using due care on the platform at a station of the railroad corporation, to make a necessary change from one train to another, is injured by being struck by a mail-bag thrown, in accordance with a custom known to the corporation, by a mail agent in the employ of the United States, from a mail-car belonging to the corporation on one of its express trains running at a high rate of speed, may maintain an action for such injury against the corporation.

TORT for personal injuries occasioned to the plaintiff by being struck by a mail-bag thrown by a mail agent in the employ of the United States, from a mail-car belonging to the defendant on one of its trains. Trial in the Superior Court, without a jury, before Staples, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

W. S. Stearns, for the defendant.

J. T. Joslin (G. A. King with him), for the plaintiff.

COLBURN, J.-The plaintiff was a passenger on the railroad of the defendant, and properly on the platform at the station, waiting. to make a necessary change from one train to another. There is no claim that she was in an improper place, or in any way wanting in due care. The plaintiff sustaining this relation to the defendant, and being in this place, the defendant was bound to exercise towards her such care and diligence as could reasonably be exercised to protect her from such injuries as human foresight could anticipate and prevent.

The defendant voluntarily furnished a car to run on its express train, from which it knew that mail-bags were to be thrown at the station where the plaintiff was when the train was under full speed. Obviously, unless good judgment and great care were used by the mail agent in throwing out the bags, which had the momentum of a train moving at the rate of thirty miles an hour, or forty

18 A. & E. R. Cas.-11.

four feet a second, danger was likely to result to passengers on the platform of the station.

There was evidence in the case tending to show that mail-bags had not unfrequently been thrown from this car in such a way as to strike upon the platform where the plaintiff stood; and if this evidence was believed the court was justified in inferring that the defendant knew, or, in the exercise of proper care, ought to have known this. It was within the power of the defendant to prevent this practice of throwing out mail-bags, if in no other way. by withholding the use of the car, or by stopping the train at the station. The case presented is unlike that of the act of a passenger, which the defendant had no reason to anticipate or power to prevent.

We are of opinion that the court was justified in refusing to rule, as requested by the defendant, that the plaintiff was not entitled to recover.

Exceptions overruled.

NEW YORK, LAKE ERIE & W. R. Co.

v.

SEYBOLT, Adm'x.

(51 New York Reports, 562.)

In an action by a mail agent against a railroad company, for injuries occasioned by the train on which he is traveling leaving the track and running into cars standing on a side-track, the proof of the above facts constistutes prima facie proof of the company's negligence.

The party upon whom rests the burden of proof in a civil action such as the above, is not bound to establish a case free from reasonable doubt; he performs his obligation by presenting a preponderance of evidence.

A railroad corporation owes the same degree of care to mail agents riding in postal cars in charge of the mails as they do to passengers.

A mail agent was killed by an accident on defendant's road. Upon the pass issued for its use by defendant was an indorsement by which it stipulated for an exemption from liability for damages on account of injuries occurring through its negligence. Held that, as the authority of the government agents to contract for the transportation of mails is limited by the provisions of the United States Statutes, and as no power is given them to contract for exemption to a railroad corporation from liability for such a cause of action, it was not to be assumed that the contract under which defendant carried the mails contained any such provision; that if the contract between the government and defendant contained such a provision it was unauthorized and void; that, assuming the decedent received the pass and was chargeable with knowledge of its contents, it did not constitute a contract between him and defendant; that, as the absolute duty of carrying the agent in charge of the mail is imposed by said statutes upon the railroad corporation accepting the public mail for transportation, the defendant had no right to impose the condition; the agent's acceptance of the pass did

not indicate his intention to assent to its provisions, and even if it might be so construed, and if the exemption clause was to be considered as a contract, it was void for want of consideration.

APPEAL from judgment of the general term of the Supreme Court, in the second judicial department.

Lewis E. Carr, for appellant.

J. F. Seybolt, for respondent.

RUGER, C. J.—The cause of the accident whereby the plaintiff's intestate lost his life was left in some doubt by the testimony, and was altogether a matter of inference for the jury to draw from the circumstances appearing in evidence relating thereto.

No direct evidence was given on the subject by either party, the defendant seeking to establish the inference that it was occasioned by the breaking of an axle by proving from the evidence of its employés and others that the axle of the engine was found broken after the accident, and that its switches were properly set; that the road-bed and machinery of the train were of sound ma terial, in good order and condition, and that the train was carefully and skillfully managed; and the plaintiff, from the nature of the accident, the results produced and the circumstances surrounding it, that it was occasioned by the negligence of the defendant's servants in setting the switches at the place of accident, whereby the train was diverted from the main track and brought in collision with obstructions on a side-track, which produced the injury complained of. It was undisputed in the case that the casualty occurred in the immediate vicinity of the switch; that the cars left the main track following either upon or in the general line of the side-track leading from the switch; that they came in collision with cars standing on the side-track at a distance of several hundred feet from the switch, and that the proximate cause of the destruction of the mail-car was the collision between the train and the cars standing on the side-track. These circumstances afforded a strong presumption that the train was diverted from the main track by some disarrangement of the switch. No adequate cause for the various circumstances appeared in evidence except that afforded by the presumption of a misplaced switch.

Notwithstanding the positive evidence of witnesses to the effect that, at different times during the few hours preceding this accident, they had examined these switches and found them properly set and locked, there was sufficient evidence, derivable from the undisputed facts, and the conflicting statements as to the situation of the connecting rails of the side-track after the accident, to afford a support for the inference, probably drawn by the jury, that the accident was caused by a misplacement of one or both of the switches. There was evidence tending to show that the mail