elevated railway companies has been discovered in the fact of leaving an open space twenty-six inches in width between its cars and the railings around its platform;195 and in the fact that the platform at an elevated railway station was built on a curve, in such a manner that there was an open space between the steps of the car and the edge of the platform, about fourteen inches wide, and that the platform was insufficiently lighted, so that this open space could not be readily seen, into which a passenger stepped and was injured,-the question of negligence being for the jury.196 § 2714. In Case of Passengers on Freight Trains.-As hereafter seen,197 if a railway company carries passengers on its freight trains, and thereby makes a mixed train of its freight train, it stands under the same duty of protecting the passenger from danger, as where it carries him on its passenger train,—though it may easily be concluded that, the business of transporting freight being the primary business of such a train, and the carriage of passengers being a secondary or subordinate business resorted to for the public convenience, the company will not be under the same obligation of landing passengers at a station platform which will attach to it in respect of its ordinary passenger trains. Clearly, it is the duty of those in charge of a railway train carrying passengers, although a freight train, to stop in the night at such places as are reasonably safe for the egress of passengers; and where, on a dark and stormy night, a freight train was pulled up at an unusual place, and the passenger alighted, and, in effecting his egress from the train, fell into a culvert of which he had no notice and was injured,—it was held a case for the recovery of damages. 198 It has been held that a railroad company hattan R. Co., 65 N. Y. Supp. 271; s. c. 31 Misc. (N. Y.) 723. On the same line of reasoning, it has been held that an elevated railroad company is not liable for an injury to a passenger caused by her shoes being caught in a rubber on a stairway leading to a station, where such stairway was out of order for only a few minutes before the accident, and the company had no notice of its condition: Foley v. Manhattan &c. R. Co., 34 N. Y. Supp. 1050; s. c. 69 N. Y. St. Rep. 21. 195 Barth v. Kansas City &c. R. Co., 142 Mo. 535; s. c. 10 Am. & Eng. Rail. Cas. (N. S.) 281; 44 S. W. Rep. 778. Nor was the negligence of the elevated railroad company, in so constructing its platform, excused by the fact that other railroad compa nies had done the same thing,—that is to say, had been equally negligent: Barth v. Kansas City &c. R. Co., supra. 196 Boyce v. Manhattan R. Co., 118 N. Y. 314; s. c. 23 N. E. Rep. 304; 28 N. Y. St. Rep. 693; 41 Am. & Eng. Rail. Cas. 111. 197 Post, § 2901. 198 Hartwig v. Chicago &c. R. Co., 49 Wis. 358. The same was held in Delamatyr v. Milwaukee &c. R. Co., 24 Wis. 578. So, where the plaintiff attempted to get aboard the ladies' car, which had stopped before it reached the platform, and walked off the platform in the dark and was injured: Quaife v. Chicago &c. R. Co., 48 Wis. 513. Under a statute (Sands & H. Ark. Dig., § 6284) requiring local freight trains to owes a duty to one in charge of stock being shipped over its road, to provide, for his safety and convenience, proper approaches to all portions of its station grounds, to which the reasonable prosecution of his business may require him to go. 199 § 2715. Duty of Providing Safe Wharves by Carriers by Water.Applied to carriers by water, this duty extends so far as to require of them reasonable care in providing safe wharves for the use of their passengers in getting on and off their vessels, and this wholly without reference to the state of the title, or right to use the wharf.200 Thus, it has been held that a steamship company is responsible for the condition of a wharf rented for its use and in the sole control of its officers, although the lease is not made to the company itself, but to its agent, for the reason that the landlord preferred to deal with the agent personally.201 § 2716. Injuries to Waiting Passengers through Carelessness of the Carrier's Servants.-The obligation of keeping the station in a reasonably safe condition imposes upon the servants of the company the necessity of discharging their duties in a prudent manner, such that the security of the passenger shall not be jeopardized. Thus, in one case the company was held responsible for the act of a brakeman in throwing a burning stick of wood from the train, which struck a passenger on the head who was walking upon the platform.202 In another case, the plaintiff, while standing in a proper place to await the arrival of a train, was placed in great danger from the approach of a train in an unexpected direction, by reason of the displacement of a switch through culpable negligence of carry passengers from and "to" all of their stations, a passenger on a freight train is entitled to be carried to some place in the yard of the station not unreasonably distant from the platform, and may recover damages if he is compelled to get off at a place a mile away: St. Louis &c. R. Co. v. Neal, 66 Ark. 543; s. c. 51 S. W. Rep. 1060. 190 Texas &c. R. Co. v. Hudman, 8 Tex. Civ. App. 309; s. c. 28 S. W. Rep. 388. For a collection of facts under which, on a dark and stormy night, a person on his way to take passage in the caboose of a freight train, fell into an open cattle-guard and was injured, and it was held that the jury were warranted in finding that the defendant was guilty of negligence and the plaintiff not guilty of contributory negligence,— see Hartwig v. Chicago &c. R. Co., 49 Wis. 358. And see, for a criticism of an instruction on the question of plaintiff voluntarily taking the wrong way and putting himself in peril, with the conclusion that it was not erroneous as against the defendant,-Hartwig v. Chicago &c. R. Co., supra. 200 Rogers v. Kennebec Steamboat Co., 86 Me. 261; s. c. 25 L. R. A. 491; 29 Atl. Rep. 1069; 10 Am. Rail. & Corp. Rep. 332. 201 York v. Canada &c. Steamship Co., 22 Can. S. C. 167. 202 Jeffersonville &c. R. Co. v. Riley, 39 Ind. 568. servants of the company. She became alarmed, and in running away to escape the apprehended peril, fell and was injured. A verdict. against the company was sustained, although the course which the plaintiff took in running off brought her into greater peril from the approach of the train, and although the immediate cause of her fall was tripping over the rail of the track on which she was running.203 203 Caswell v. Boston &c. R. Co., 98 Mass. 194. CHAPTER XCI. LIABILITY OF THE CARRIER FOR NEGLIGENCE. ᎪᎡᎢ. I. Degree of Care Required of Carriers of Passengers, §§ 2720-2751. ART. II. Presumption of Negligence from the Happening of the Accident, §§ 2754-2775. ART. III. Proximate and Remote Cause of Injury or Damage, §§ 2778-2783. ART. IV. Negligence in Failing to Provide a Safe Vehicle and Roadway, §§ 2785-2816. ART. V. Negligence of Railway Carriers in Operating their Trains, §§ 2818-2920. SUBDIV. 1. In General, §§ 2818-2841. SUBDIV. 2. Duty of Carrier to Warn and Assist Passenger, §§ 2843-2852. SUBDIV. 3. Duty to Enable Passenger to Board Train and Become SUBDIV. 4. Duty to Allow Passenger a Reasonable Opportunity to SUBDIV. 5. Carrying the Passenger beyond his Proper Station, §§ 2890-2899. SUBDIV. 6. Negligence with Respect to Passengers on Freight Trains, §§ 2901-2907. SUBDIV. 7. Negligence with Respect to Stockmen on Cattle ARTICLE I. Degree of Care REQUIRED OF CARRIERS OF PASSENGERS. 2733. Liable for the slightest negli- 2743. Another instance of such an gence. 2734. Theory that this duty renders carrier liable, although the proximate cause is the negligence of a third person. 2735. To whom this measure of care is due the feeble, sick, 2747. Comments on the "reasonable aged, decrepit, intoxicated. 2736. Further of this duty of care towards feeble or helpless passengers. 2737. This care varies with the situation of passenger. 2738. Greater care required in favor of passengers under disabilities. care" doctrine. 2748. Doctrine that the rule of extraordinary care applies only to the carrier's means of transit. 2749. Circumstances under which the carrier is bound only to ordinary care as toward the passenger. 2739. This duty of care illustrated 2750. Care required where passen in the case of a lunatic. 2740. In the case of a passenger who is intoxicated. 2741. This rule of diligence does not exclude the defense of the contributory negligence of the passenger. gers are transported in other than passenger cars. 2751. The obligation of care toward passengers, how affected by statute. § 2720. Grounds on which this Liability Rests.1-The carrier is under a duty to carry the passenger safely, so far as human care, foresight, and skill will enable him to do it. This duty, it is said, exists independently of contract, and although there is no contract in a legal sense between the parties. Whether there is a contract to carry, or the service undertaken is gratuitous, an action lies against the carrier for a negligent injury to the passenger. The law raises the duty out of regard for human life, and for the purpose of securing the utmost vigilance by carriers in protecting those who have committed themselves to their hands. The liability of the carrier is the same, whether the action is brought upon the contract or upon the duty, and the evidence requisite to sustain the action in either form is substantially the same; and when there is an actual contract to carry, it is properly said that the liability in an action 1 This section is cited in § 2617. * Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 468; s. c. Thomp. Carr. Pass. 31; Steamboat New World v. King, 16 How. (U. S.) 469; s. c. Thomp. Carr. Pass. 175. |