234 against the railway company from the mere fact of inflicting an injury; and it is said that, combining that presumption with the whole sum of the evidence, one of four results may follow: 1. If the presumption is totally overcome, the verdict should be for the company; 2. Whether it is overcome or not, if the plaintiff either caused the injury by his own negligence, or could, by ordinary care, have avoided it, the verdict should still be for the company; 3. If the plaintiff was faultless, neither contributing to the injury nor omitting ordinary care to avoid it, the verdict should be against the company for the full damages; and, 4. If the plaintiff contributed to the injury, but did not himself cause it, and could not have avoided it by ordinary care, the verdict should be against the company, not for full damages, but for the damages diminished in proportion to the default attributable to the plaintiff.233 A statute of Nebraska makes every railroad company liable for all damages inflicted upon the persons of passengers while being transported by it, except where the injury arises from the criminal negligence of the person injured. The term criminal negligence, as here used, is understood to mean such gross negligence as amounts to a reckless disregard of one's own safety, and a willful indifference to the consequences likely to follow from a given act.235 The same statute236 gives a right of action to a person for all injuries sustained while a passenger of a railroad company, except where the injury is occasioned by his own criminal negligence, or by his violation of some express rule or regulation of the carrier, actually brought to his notice.237 The constitutional validity of this statute has been affirmed,238 and there can be no doubt upon the question. This statute has been held not to be in conflict with another statute of the same State, modeled upon Lord Campbell's Act, giving a right of action for damages resulting in death, and the latter statute is not amendatory of the former, and the two statutes are no wise in conflict.239 Under this statute a presumption of negligence arises upon proof of the fact that a person was, at the time of receiving an injury, being transported as a passenger on the railroad of the defendant. This presumption is of such a nature that it can be overcome only by showing that the injury arose from the criminal negligence of the party injured, or was the result of the violation of some express rule or regulation of the company, actually brought to the notice of the injured person.240 In another case the effect of the statute has been said to be to create a presumption of negligence on the part of the railroad company whenever it is shown. that an injury to a passenger has occurred,241 and that the injury resulted from the management or operation of the railroad. ARTICLE III. PROXIMATE AND REMOTE CAUSE OF INJURY OR DAMAGE. SECTION 2778. The negligence of the carrier must have been the proximate cause of the injury. 2779. Concurring negligence of the carrier and a third person. 2780. Concurring negligence of two carriers who undertake to transport the passenger. SECTION 2781. Joint liability of two carriers for injury to passengers on the vehicle of one of them. 2782. Remoteness of damages in such cases. 2783. Damages in such cases held too remote. § 2778. The Negligence of the Carrier must have been the Proximate Cause of the Injury.-The severe rule of care and diligence 240 Union &c. R. Co. v. Porter, 38 Neb. 226; s. c. 56 N. W. Rep. 808; 58 Am. & Eng. Rail. Cas. 289. 241 Missouri &c. R. Co. v. Baier, 37 Neb. 235; s. c. 55 N. W. Rep. 913. A passenger, while lying in the berth of the steerage of one of defendant's ships, being aroused by screams, noticed that the tier of berths above her was tilted down towards her. Before she could recover her self-possession the steerage steward pulled her out of her berth, and, while he was trying to set her firmly on her feet, a lurch of the vessel sent her along the floor against the door on the other side, from which she was thrown off to the floor. It was held that the falling of the tier of berths was presumptive evidence of negligence on defendant's part, and, this not being controverted, defendant was held liable for plaintiff's injuries, on the ground that the same were the immediate and proximate result of the falling of the tier of berths: Smith v. British &c. Packet Co., 46 N. Y. Super. Ct. 86; s. c. aff'd 86 N. Y. 408. In like manner, where a passenger riding on the caboose of a mixed train, by invitation, was injured by the falling of a bed frame, fastened above him, when a freight car was backed against the caboose, the burden was upon the carrier to show that the bed frame was properly secured: Stoody v. Detroit &c. R. Co., 124 Mich. 420; s. c. 83 N. W. Rep. 26. So, where a passenger was injured by the falling of a berth in a sleeping car which had been insecurely closed, the testimony of the passenger that she thought it was a brakeman who pushed up the berth, was deemed sufficient to sustain a verdict in her favor for damages, although in presenting her claim to the company, she stated that it was a newsboy, and although she testified on the trial that her recollection was probably better when the claim was presented, than it was at the time of the trial: Northern &c. R. Co. v. Hess, 2 Wash. 383; s. c. 26 Pac. Rep. 866. So. the burden of rebutting the presumption of negligence from an injury to a passenger arising from the fact of a ventilating window falling on her head, is on the railway carrier: Och v. Missouri &c. R. Co., 130 Mo. 27; s. c. 31 S. W. Rep. 962; 36 L. R. A. 442; 2 Am. & Eng. Rail. Cas. (N. S.) 343. which the law imposes upon the carrier' does not extend so far as to make him liable for an injury to a passenger from an accident which is not the reasonable, natural and probable result of the situation, and which could not have been foreseen by the carrier in the exercise of that high degree of care which the law demands of him.242 Undoubtedly, he is bound to look into the future further, and to take more care than men take in ordinary situations, but the law does not make him liable for extremely remote and improbable consequences. 243 § 2779. Concurring Negligence of the Carrier and a Third Person. But it does not at all follow from the foregoing that the carrier will be exonerated in every case where the negligence of a third person concurs with his negligence in producing the hurt to the passenger. It is elsewhere shown that where an injury proceeds from the concurring negligence of two different persons, under such circumstances that the negligence of either is to be deemed an efficient cause of the injury, the person injured has an action for damages against either or against both. This rule is of application in the relation of carrier and passenger.245 Thus, where the evidence tended to show that the conductor of a street railway car had ordered a boy 244 242 Ayers v. Rochester R. Co., 156 N. Y. 104; s. c. 50 N. E. Rep. 960; rev'g s. c. 88 Hun (N. Y.) 613; Levy v. Campbell (Tex.), 19 S. W. Rep. 438. 243 Under the Texas statutes, giving a right of action for damages for the death of a passenger, due to the negligence of the carrier, it is not necessary that the negligence should have been of such a character as that the death of the passenger therefrom might reasonably have been anticipated. In the particular case, the passenger was killed by a fall from a stool used in the act of alighting from a railway train. It was held that although the death of a passenger from the use of such stool might not be anticipated, yet if the use of it was negligent, and if the passenger was guilty of no contributory negligence, and if his fall was the proximate result of the use of the stool, a recovery might be had: Gulf &c. R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Rep. 592 (no off. rep.). This seems to be merely an application of the doctrine already considered (Vol. I, § 59) that it is not necessary that the precise injury which did happen should have been anticipated in order to make the injury the proximate consequence of the negligent act or omission. The negligence of a railway company in backing a train in front of the locomotive, was deemed the proximate cause of the injuries sustained by a passenger, who was thrown against an object in the car, when the train collided with a horse on the track; since the consequences of such a collision were not so unnatural and unusual that they could not have been foreseen, and that they ought not to have been foreseen in the exercise of the high degree of care which the law puts upon carriers of passengers: Chicago &c. R. Co. v. Grimm, 25 Ind. App. 494; s. c. 57 N. E. Rep. 640. 244 Vol. I, § 75. 245 Com. v. Coburn, 132 Mass. 555. That the carrier of the injured person may be compelled to pay damages, see Kellow v. Central &c. R. Co., 68 Iowa 470 (passenger coach standing across another railroad, and struck by a freight car thereon). to stand on the front platform, and that, while the boy was so standing, another passenger jostled him from the car, whereby he received a fatal hurt, and there was no evidence that he would have received the hurt but for the intervening wrong of the passenger, the company was nevertheless held liable, the court saying: "It is no justification for the defendant that another party, a stranger, was also in the wrong." It is necessarily a part of this doctrine, that a railroad. company can not defend against an action by its own passenger for a negligent injury received by him while on the vehicle of the defendant, by setting up that another railroad company was guilty of greater negligence, if the defendant company might have averted the injury to the plaintiff by the exercise of that measure of care which the policy 2246 246 Sheridan v. Brooklyn &c. R. Co., 36 N. Y. 39. See, also, Chapman v. New Haven R. Co., 19 N. Y. 341; Barrett v. Third Ave. R. Co., 45 N. Y. 628; Pollett v. Long, 56 N. Y. 201; Slater v. Mersereau, 64 N. Y. 138; Sauter v. New York &c. R. Co., 66 N. Y. 50. So, where the injury results in part from the wrongful act of the driver of a street car in starting the car forward while the passenger is endeavoring to get off, and in part from the intervening act of the conductor in endeavoring to seize the passenger and prevent him from falling, the company is liable for the full amount of damages received by the passenger. The two acts are deemed in a sense parts of one act: Macer v. Third Ave. R. Co., 15 Jones & Sp. (N. Y.) 461. So, a railway carrier is responsible for an injury to a passenger caused by his being compelled to ride on the steps of a car, where he is crowded off by other passengers: Chicago &c. R. Co. v. Fisher, 38 Ill. App. 33; s. c. aff'd on other grounds in 141 Ill. 614; s. c. 31 N. E. Rep. 406. There is no legal or common sense in the decision of another court that where a passenger is injured by the joint negligence of his carrier and another party, his remedy is against his carrier alone: Carlisle v. Brisbane, 113 Pa. St. 544; s. c. 4 Cent. Rep. 511. Equally opposed to law and destitute of sense, is the proposition decided by the same court, that, in an injury received by a passenger in a collision between the car in which he is riding, and the car of another railroad company, if he But brings the action against the other company, he must prove that the latter alone is chargeable: People's Pass. R. Co. v. Lauderbach (Pa.), 2 Cent. Rep. 801. In other words, we suppose he must prove that the contributory negligence of his own proper carrier did not contribute to his injury: an application of the offensive and exploded doctrine of imputed negligence. As to this doctrine, see Vol. I, § 497, et seq. there is no sense in the proposition. and it is opposed to the settled rule of law, that if a man is injured by the concurrent negligence of one or more persons, he has a right of action against every person who assists in inflicting the injury. Turning the proposition around, and placing the passenger in a position where he is looked at from a distance upon the vehicle of the other carrier, we find that it has been held that a railroad company is liable for injuries to a passenger on the train of another railroad company, when the injury results from the negligent misplacement of a switch, by an employé of the former company, where both companies are using the tracks of a third company: Patterson v. Wabash &c. R. Co., 54 Mich. 91. It may be added, that the company whose servant did the mischief is liable, although the two companies might not both be using the tracks of a third company, provided such servant, in misplacing the switch, were acting within the general scope of his employment: Vol. I, § 518, et seq. of the law puts upon it.2 250 Nor need it be said that where a passenger on a railway train is injured by a collision between such train and the train of another company, at a point where the two lines cross each other at grade, and brings an action against his own carrier, the defendant can not defend against its own liability, on the ground that the other company was also negligent: if the defendant company was negligent, that is enough, and it must pay damages. 251 In the application of the doctrine of the foregoing text, it has been well held that, in the case of a collision between a street car and a locomotive on a steam railway, at the intersection of the two railways, whereby a passenger on the horse car is injured, if he brings his action against both companies, charging concurrent negligence, the burden will be upon the horse car company to show proper care; because the fact of the injury to its passenger creates a presumption of negligence on its part, and the burden will be upon the plaintiff to show negligence upon the part of the steam railway company, because that company was a stranger to him." 252 $2780. Concurring Negligence of Two Carriers who Undertake to Transport the Passenger.-Circumstances may arise where the duty of transporting the passenger is undertaken concurrently by two carriers, the one, for instance, furnishing the coach and the other the horses and driver; or the one furnishing the railway carriages, conductors and brakemen, and the other the locomotive and engineer. Where a train of cars, so made up, is operated so defectively that a passenger sustains an injury, he may, it seems, maintain an action. against both companies jointly; and where, in such a case, an action was brought against each carrier separately, it was held that they might be consolidated and both tried together; that the same amount of damages should be rendered against each; and that a satisfaction of the judgment recovered in either case would operate as satisfaction in both cases.253 § 2781. Joint Liability of Two Carriers for Injury to Passengers on the Vehicle of One of them.-Where a passenger on the vehicle of 250 Chicago &c. R. Co. v. Ransom, 56 Kan. 559; s. c. 3 Am. & Eng. Rail. Cas. (N. S.) 259; 44 Pac. Rep. 6; O'Rourke v. Lindell R. Co., 142 Mo. 342; s. c. 9 Am. & Eng. Rail. Cas. (N. S.) 675; 44 S. W. Rep. 254 (accident at grade crossing of two railroads). 251 O'Rourke v. Lindell R. Co., 142 Mo. 342; s. c. 9 Am. & Eng. Rail. 252 Central Passenger R. Co. V. Kuhn, 86 Ky. 578; s. c. 6 S. W. Rep. 441. 253 Keep v. Indianapolis &c. R. Co., 9 Fed. Rep. 625; s. c. 3 McCrary (U. S.) 208. |