So. 90 § 2736. Further of this Duty of Care towards Feeble or Helpless Passengers. If a railway company voluntarily accepts a passenger without an attendant whose inability to care for himself is either apparent or made known at the time to its servants, it must render to him such assistance as may be necessary to promote his safety, or be answerable for any damages he may sustain by its neglect to do But it seems that this rule ought not to apply where the carrier, having the right to reject the passenger by reason of his helpless condition, forbids him from entering his vehicle, but nevertheless he succeeds in doing so. Here his position is that of a trespasser, and the carrier, it would seem, owes him no greater duty than that which he owes a trespasser, under principles elsewhere considered. But the conductor of a railway train, on which a child seven years old is riding as a passenger with its mother, has a right to confide in the ability and inclination of the mother to take care of the child, and is not required to exercise special care to the end that the child does not get into a perilous position and receive an injury.92 91 s. c. 45 S. W. Rep. 1028; 4 Am. Neg. Rep. 233. The court cite: Croom v. Chicago &c. R. Co., 52 Minn. 296; s. c. 18 L. R. A. 602; 53 N. W. Rep. 1128; Weightman v. Louisville &c. R. Co., 70 Miss. 563; s. c. 19 L. R. A. 671; 12 South. Rep. 586. This section is cited in § 2782. Croom v. Chicago &c. R. Co., 52 Minn. 296; s. c. 18 L. R. A. 602; 7 Am. Rail. & Corp. Rep. 468; 53 N. W. Rep. 1128. Another court has held, that persons laboring under physical infirmities, or otherwise unable to care for themselves, who travel on railroad trains, must provide proper assistance for themselves; and that it is not the duty of the conductor, in the absence of instructions from the company, to render such assistance: Louisville &c. R. Co. v. Fleming, 14 Lea (Tenn.) 128. 91 Post, § 3302, et seq. Thus, it has been held that a person who, from the voluntary use of intoxicants, is incapable of protecting himself, can not, by entering a train from which he is forbidden and without the knowledge or consent of the conductor, impose on the railway company any duty beyond ordinary care to protect him from injury while upon the train, and to leave him in a reasonably safe con dition: Missouri &c. R. Co. v. Evans, 71 Tex. 361; s. c. 9 S. W. Rep. 325; 1 L. R. A. 476. 92 St. Louis &c. R. Co. v. Rexroad, 59 Ark. 180; s. c. 26,S. W. Rep. 1037. Railroad company liable for failing to provide suitable accommodations for a woman accompanied by two small children, and permitting them to remain in a dirty and filthy car in which men were chewing, smoking, drinking whiskey, using vulgar and indecent language, singing indecent songs, and discharging their pistols, and immaterial whether or not she was directed by an agent of the company to enter such car, which was in the usual place of the ladies' car: Texas &c. R. Co. v. Hughes (Tex. Civ. App.), 41 S. W. Rep. 821 (no off. rep.). It has been held that an instruction that a carrier must not only safely carry passengers, but must afford such care as is reasonably necessary to look after women and children m their alighting, is objectionable as likely to be understood to mean that the conductor must assist the women and children to alight: Selby v. Detroit R. Co., 122 Mich. 311; s. c. 81 N. W. Rep. 106. To the same effect, see Deming v. Chicago &c. R. Co., 80 Mo. App. 152; s. c. 2 Mo. App. Rep. 547. .93 § 2737. This Care Varies with Situation of Passenger.-It is not. only not true that the carrier owes to all passengers the same degree of care, but it is also not true that he owes to all passengers who are able to take care of themselves without assistance, the same measure of care, without reference to the situations in which they may be placed. For instance, if, by reason of a railway train being crowded, some of the passengers are obliged to stand upon the platforms, and if the carrier receives them and undertakes to transport them in that position, he must exercise all additional care commensurate with the dangers surrounding them in that situation.94 § 2738. Greater Care Required in Favor of Passengers under Disabilities. It is consistent not only with common humanity, but with the legal obligations of the carrier, that if a passenger is known to be in any manner affected by a disability, physically or mentally, whereby the hazards of travel are increased, a degree of attention should be bestowed upon him, to the end of promoting his safety, beyond that of an ordinary passenger, and in proportion to his liability to injury from the want of it.95 But in order that the carrier may be invested with this duty, it is necessary that the condition and needs of the passenger in this respect should be made known to him or his servants." 96 § 2739. This Duty of Care Illustrated in the Case of a Lunatic.— This is well illustrated by a frequently cited case. In that case the facts were that a lunatic was travelling upon a train in company with his father, who had procured tickets for both. The father got out at a way station to procure refreshments, leaving his son in the car without giving notice to any one of his condition. During the absence of the father, the son changed his seat. After the train started, the father having not yet found his son or given notice that he was missing, the conductor, in the absence of the father, applied to the son for his ticket. The lunatic handed the conductor the 93 See the preceding section. Lynn v. Southern &c. Co., 103 Cal. 7; s. c. 24 L. R. A. 710; 36 Pac. Rep. 1018. $5 Sheridan v. Brooklyn City R. Co., 36 N. Y. 39; s. c. 34 How. Pr. (N. Y.) 217; Giles v. Great Western R. Co., 36 Upper Canada Q. B. 360, 369; Pittsburgh &c. R. Co. v. McClurg, 56 Pa. St. 294; Columbus &c. R. Co. v. Powell, 40 Ind. 37. But see New Orleans &c. R. Co. v. Statham, 42 Miss. 607, where certain statements are made by the court which derive no support from authority in general, as for example: "All assistance that a conductor may extend to ladies without escorts, or with children, or to persons who are sick, and ask his assistance in getting on and off trains, is purely a matter of courtesy, and not at all incumbent upon him in the line of his public duty." 9 Willetts v. Buffalo &c. R. Co., 14 Barb. (N. Y.) 585; Toledo &c. R. Co. v. Baddeley, 54 Ill. 19; New Orleans &c. R. Co. v. Statham, 42 Miss. 607. card of a public house. On being threatened with expulsion from the train if he did not pay his fare, he produced another hotel ticket; whereupon he was gently put off the train, after slight resistance, saying, as he left, that "Judge Miller" had paid his fare, or would pay it. The strange conduct of the passenger, and a wild stare by him as he stood on the ground, induced a person who assisted the conductor in putting him off to inquire whether there was anything the matter with the man, to which the conductor replied that he was "one of the stubborn kind." Subsequently to this occurrence, and in ignorance of it, the father of the lunatic made inquiries of the conductor in regard to his son, and ascertained that he had been put off the train. Every facility was afforded the father, by the conductor of this and other trains, for finding him again; but the lunatic, having got upon the track, was run over and killed by another train, several hours later, in the nighttime, under circumstances which exonerated the company from every imputation of negligence as to this Occurrence. The court held that no part of the conduct of the deceased furnished sufficient evidence of insanity to put the conductor on his guard, and that therefore no recovery could be had against the company by his personal representative.97 § 2740. In the Case of a Passenger who is Intoxicated.— The fact that a passenger is intoxicated does not absolve the carrier from the duty of exercising the same care for his safety as for that of other passengers, although this circumstance may be shown as indicating contributory negligence in case of injury received by him.98 Indeed, it is properly held that it is the duty of the carrier's servants under such circumstances, when aware of the intoxication of the passenger, to give him that degree of attention which considerations for his safety demand, beyond that ordinarily bestowed upon passengers.99 If a person, while intoxicated, falls from the train through the fault of the servants of the carrier, the fact that he is drunk will 97 Willetts v. Buffalo &c. R. Co., 14 Barb. (N. Y.) 585. us Vol. I, § 341; Milliman v. New York &c. R. Co., 6 Thomp. & C. (N. Y.) 585; s. c. aff'd 66 N. Y. 642; Maguire v. Middlesex R. Co., 115 Mass. 239; Whalen v. St. Louis &c. R. Co., 60 Mo. 323. *Giles v. Great Western R. Co., 36 Upper Canada Q. B. 360; Haley v. Chicago &c. R. Co., 21 Iowa 15, 23. Upon the general subject of intoxication as an element of contributory negligence, see Wynn v. Allard, 5 Watts & S. (Pa.) 524; Chicago &c. R. Co. v. Bell, 70 Ill. 102; Toledo &c. R. Co. v. Riley, 47 Ill. 514; Baltimore &c. R. Co. v. Boteler, 38 Md. 568; Healy v. New York, 3 Hun (N. Y.) 708; Ditchett v. Spuyten Duyvil &c. R. Co., 5 Hun (N. Y.) 165; s. c. rev'd (on another point) 67 N. Y. 425; Alger V. Lowell, 3 Allen (Mass.) 402; Stuart v. Machias Port, 48 Me. 477; Cramer v. Burlington, 42 Iowa 315; Burns v. Elba, 32 Wis. 605; Thorp v. Brookfield, 36 Conn. 321; O'Hagan v. Dillon, 10 Jones & Sp. (N. Y.) 456; Robinson v. Pioche, 5 Cal. 460. not justify the carrier in leaving him exposed on the track so as to be killed by another train.100 § 2741. This Rule of Diligence does not Exclude the Defense of the Contributory Negligence of the Passenger.-It must be kept in view that the exact duty of care and diligence which the law imposes upon the carrier, is not so severe that it will exclude from consideration the contributory negligence of the passenger. In other words, the failure of this duty of care on the part of the carrier,-assuming that it is the result of mere inadvertence, carelessness, want of skill, or incompetency,-does not rise to the grade of willfulness or wantonness, such as, under a principle already considered,101 eliminates the contributory negligence of the passenger from consideration. But here, as in other cases, the passenger is under the duty of taking reasonable care for his own safety; and while in most cases the question of his contributory negligence will not arise, as where he is injured in a derailment, or by the breaking down of a bridge, or in a collision, while passive in his proper seat in the vehicle of the carrier,—yet in some cases it will fairly be presented, as where he assumes to ride upon the pilot of the locomotive, and is hurt in a collision, or where, riding on the platform of his passenger coach, instead of riding in his proper seat, he is hurt 'under such circumstances that, had he kept his proper place, he would have passed through the catastrophe unharmed. 102 So, if, while a train is waiting at a station on a side track, a passenger goes into the baggage car to see the conductor on legitimate business, and while there is thrown down by another car striking it with a jolt, the contributory negligence of the passenger will not be eliminated from consideration, although the defense of it may avail the carrier nothing.103 Many of the de 100 Cincinnati &c. R. Co. v. Cooper, 120 Ind. 469; s. c. 6 L. R. A. 241; 22 N. E. Rep. 240; 6 Rail. & Corp. L. J. 491. Where the action was predicated on the proposition that the carrier, knowing that the plaintiff was intoxicated, did not properly care for him as a passenger,it was held that evidence that the plaintiff purchased beer shortly before the accident at a restaurant in the defendant's passenger station, kept by a person under a lease from the defendant, was admissible to show the plaintiff's intoxicated condition: Cutler v. Concord &c. Ry., 64 N. H. 641; s. c. 46 Atl. Rep. 1051. But it has been well held that a railway carrier is not liable for in jury to a passenger who has been 102 For a consideration of these 103 Gardner v. Waycross &c. R. Co., 97 Ga. 482; s. c. 25 S. E. Rep. 334. cisions, in stating the rule that the happening of the accident raises a presumption of negligence against the carrier, include in their statement the proviso that the passenger was himself in the exercise of due care;104 and this is an important factor in those jurisdictions which require the plaintiff, in actions for damages for negligence, to allege and prove his own freedom from contributory negligence." The true doctrine is that, a passenger who is injured through the negligence of a railroad company other than the one carrying him, may recover damages from that other company, without regard to whether the company carrying him was in fault or not.106 105 § 2742. Instance of an Instruction Demanding Too Strict a Standard of Diligence. In an important case in New Hampshire,107 the trial court instructed the jury as follows: "The burden of proof is on the plaintiff to show that the accident occurred under such. circumstances that the defendants were liable for the consequences. Defendants are not insurers, and are not liable if they have been in no fault, but they are liable for the smallest negligence. They must provide a good track; and if there be the least failure in this, they are answerable for any injury that may happen in consequence. Defendants are bound to use the highest degree of care which a reasonable man would use. This does not mean the utmost degree of care which the human mind is capable of imagining, or, in other words, that care enough must be taken to render the passengers perfectly safe; such a rule would require so great an expenditure of money, and the employment of so many hands. Defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. The law does not require such particular precaution as it is apparent, after the accident, might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to Defendants must use the highest degree of practicable care occur. 104 Whitney v. New York &c. R. ligence of the carrier, it is not necCo., 102 Fed. Rep. 850. 105 In a jurisdiction where this rule obtains, a plaintiff injured in a passenger depot by an incoming train, has the burden of showing that the injury was caused by the defendant, and that his own negligence did not contribute thereto: Archer v. New York &c. R. Co., 106 N. Y. 589; s. c. 13 N. E. Rep. 318. Under Mass. Pub. St., ch. 112, § 212, in an action by a passenger for injury from neg essary for the plaintiff to negative contributory negligence: McKimble v. Boston &c. R. Co., 141 Mass. 463; s. c. 1 N. E. Rep. 48. 106 Pittsburgh &c. R. Co. v. Spencer, 98 Ind. 186; Holzab v. New Orleans &c. R. Co., 38 La. An. 185; Douglass v. Sioux City St. R. Co., 91 Iowa 94; s. c. 58 N. W. Rep. 1070. 107 Taylor v. Grand Trunk R. Co., 48 N. H. 304. |