over the avenues of access to its cars, and can control the number of passengers boarding its train, it will be liable in damages, on the footing of negligence, for permitting passengers to crowd upon the platform of a car in such numbers as to push a passenger's foot between the bumpers of two cars, crushing it.418 A railroad company is clearly liable for injuries received by a passenger by being jolted or pushed from the platform of a crowded car by the employés of the company in working their way through the crowd, where he has been induced to get upon the platform of the car by the statement of the conductor that there is room inside, and has been unable either to get inside the car or to alight therefrom in safety.*1

419

§ 2823. Injuries in Consequence of Collisions between Trains of the Same Company. 20-The doctrine stated in a preceding section that an accident resulting from a failure of any of the carrier's means of transportation or from the mistakes or misprisions of his servants, is prima facie evidence of negligence to charge the carrier, applies with great force where the accident is caused by the colliding of different railway trains of the same company; since such an act can scarcely be ascribed, unless under extraordinary circumstances, to any other cause than a defect in the carrier's means of transportation, or in his running arrangements, or in the conduct of his servants.421 The rule seems to extend further than to collisions between trains of the same company. It has been held that an unexplained collision between two regular trains of different railroad companies at the crossing of their roads, in broad daylight, creates a presumption of negligence on the part of one or the other or both of such companies.422 On a principle already considered,423 the fact that the statutory signals were given is not enough in all cases to absolve the railway company from the imputation of negligence in the case of a collision: in some localities and under some circum

418 Dawson v. New York &c. Bridge Co., 31 App. Div. (N. Y.) 537; s. c. 52 N. Y. Supp. 133.

419 Dennis v. Pittsburgh &c. R. Co., 165 Pa. St. 624; s. c. 36 W. N. C. (Pa.) 81; 31 Atl. Rep. 52; 25 Pitts. L. J. (N. S.) 354.

420 This section is cited in § 3502. 421 Gleeson v. Virginia &c. R. Co., 140 U. S. 435; s. c. 35 L. ed. 458; 11 Sup. Ct. Rep. 859; 44 Alb. L. J. 38; Iron R. Co. v. Mowery, 36 Ohio St. 418; Fredericks v. Northern &c. R. Co., 157 Pa. St. 103; s. c. 27 Atl. Rep. 689; 22 L. R. A. 306; Magoffin

v. Missouri &c. R. Co., 102 Mo. 540; s. c. 15 S. W. Rep. 76; Louisville &c. R. Co. v. Faylor, 126 Ind. 126; s. c. 25 Ohio L. J. 55; 25 N. E. Rep. 869; Baltimore &c. R. Co. v. Hausman (Ky.), 54 S. W. Rep. 841 (no off. rep.); Kansas City &c. R. Co. v. Stoner, 4 U. S. App. 109; s. c. 49 Fed. Rep. 209.

422 Kansas City &c. R. Co. v. Stoner, 4 U. S. App. 109; s. c. 49 Fed. Rep. 209.

423 Vol. II, §§ 1494, 1541, 1544, 1555, 1573, 1576.

stances other precautions may be required, adapted to the emergencies of the particular occasion.424

§ 2824. Further of such Collisions. It is, of course, possible, in exceptional cases, for the carrier to exonerate himself by showing that the collision took place through some circumstance beyond his control, notwithstanding the fact that he exercised the high degree of vigilance which the law imposes upon common carriers of passengers, as, for example, where it was produced by the sudden conduct of a trespasser in misplacing a switch-conduct which could not have been prevented or detected by the exercise of the extraordinary vigilance which the law imposes upon the carrier. 425 But where a train, which separated into two parts while climbing a steep grade on a curve track, where it could not be seen from a train in the rear, was only eight minutes in advance of the engine which was drawing a train in the rear, and, as the separated portion rolled back, the caboose of it came in contact with such engine, whereby a passenger in the caboose was injured,—this was held to be prima facie evidence of negligence.426 Under this head, it has been held evidence of negli

424 Dyer v. Erie R. Co., 71 N. Y. 228.

In the same case it is held that it is not, however, for the jury to determine what signals should have been given in the particular case, and that a general submission of that question to them, without qualification or limitation, is error: Dyer v. Erie R. Co., 71 N. Y. 228. But this seems to be a confusion of the true principles of trial by jury such as often appears in the decisions in the same State. The law has no rule on this subject, except where it has been made by statute, and this very fact takes the question to the jury. So, where a passenger train breaks down, and it becomes necessary, in order to avoid a collision, to give notice of that fact to a freight train which is following it, and the brakeman on the passenger train goes back the usual distance to flag the freight train, but nevertheless, owing to the darkness of the night, the slippery condition of the track, and the fact that the passenger train broke down at the foot of a steep grade which the freight train was descending, whereby it came into collision with the passenger train, the fact that the brakeman went back the usual distance to flag the train coming in the rear, does

not exonerate the railway company from the imputation of negligence: Gulf &c. R. Co. v. Brown, 16 Tex. Civ. App. 93; s. c. 40 S. W. Rep. 608. 425 Thus, it has been held that the failure of a railway company to recover a switch key from a discharged employé is not of itself sufficient to make the company liable for his criminal act in maliciously misplacing a switch for the purpose of wrecking a train: East Tennessee &c. R. Co. v. Kane, 92 Ga. 187; s. c. 22 L. R. A. 315; 18 S. E. Rep. 18.

420 Louisville &c. R. Co. v. Faylor, 126 Ind. 126; s. c. 25 N. E. Rep. 869. Evidence which was held sufficient to sustain a finding that injuries to the left side of the plaintiff were caused by a collision where the evidence was conflicting and the passengers "fell in a heap." etc.: McCready v. Staten Island R. Co., 64 N. Y. Supp. 996; s. c. 51 App. Div. (N. Y.) 338. But a carrier is liable to a passenger for the negligent throwing of a switch, causing the derailment of a car, by a person who was not employed by the carrier, but did the act in the presence of a brakeman who made no objection: Dimmitt v. Hannibal &c. R. Co., 40 Mo. App. 654.

gence for the conductor of a freight train to leave on the main track a car designed for passengers, when he knows of the approach of a freight train, and for a flagman to go back only 200 yards, instead of 1,000 yards, as is customary, to flag the freight train, and for that train to continue its speed until too late for it to avoid collision with such car;+27 to have the conductor of a passenger train and a watchman supplied with the same uniforms, and the same signal lanterns; for the watchman to signal for the train to move in the same manner in which the conductor signals; for the watchman, in the particular case, to signal for a train to move out of the way of an incoming train, in the same way that the conductor would have signaled for the train to proceed on its journey; so that the engineer mistakes the watchman's signals for the conductor's, and prematurely starts the train on its journey, whereby a collision occurs with a freight train;428 and for the foreman of a switch engine, who is notified by the yardmaster that notice has been received of the coming of an excursion train from another railroad under a traffic arrangement, to fail to notify the engineer of the switch engine of the approach of such train, but to permit the latter to engage in the work of switching upon the same track on which such train is coming.*

427 Louisville &c. R. Co. v. Long, 94 Ky. 410; s. c. 22 S. W. Rep. 747; 15 Ky. L. Rep. 199.

428 Kansas City &c. R. Co. v. Sanders, 98 Ala. 293; s. c. 13 South. Rep. 57.

429 Eddy v. Letcher, 57 Fed. Rep. 115; s. c. 6 C. C. A. 276. It has been held that the yardmaster of a mining company, which uses its tracks for the sole purpose of its individual business, and not for the carriage of passengers, has no apparent authority to consent to the use of one of its tracks by an excursion train, so as to render the company liable for an injury sustained by an excursionist by jumping off the train to prevent injury from a collision with one of the company's trains on the same track, of the existence of which the yardmaster negligently failed to inform those in charge of the excursion train: Vormus v. Tennessee Coal &c. R. Co., 97 Ala. 326; s. c. 12 South. Rep. 111. An elevated railroad company has been exonerated from the imputation of negligence where a collision occurred in a snow storm in consequence of the failure of the engineer on one train to see another train ahead of him, in time

429

to avert a collision,-the reason being that its charter required it to operate its trains, if practicable, for the convenience of the public, and that it was not negligence, as matter of law, for it not to suspend the moving of its trains in consequence of a severe snow storm, where the storm had apparently abated, and its trains were crowded with passengers anxious to reach their destinations, and no accident had yet occurred: Connelly v. Manhattan R. Co., 142 N. Y. 377; s. c. 59 N. Y. St. Rep. 775; 37 N. E. Rep. 462. State of pleadings and evidence under which it was not error to instruct the jury that "defendant admits its liability if plaintiff received any personal injury by reason of, and at the time of, the collision:" Baltimore &c. R. Co. v. Hausman (Ky.), 54 S. W. Rep. 841 (no off. rep.). That the refusal so to frame instructions in an action for damages to a passenger in a railroad collision as to present the rule in regard to a prima facie case, and leaving the jury without instructions to aid them in determining the facts and causes of the accident, and how far these facts were within the control of defendant,-is error,-see Glee

§ 2825. Collisions with Trains of Other Companies.430-It seems that, as between a railway carrier and its passenger, the fact of a collision between its train, upon which the passenger is riding, and the train of another company, creates a presumption of negligence on the part of one, or the other, or both of such companies.431 On a principle already considered,432 it seems that if the cause of the collision is obscure, this presumption will arise in favor of the passenger as against his own carrier. 433 But the circumstances attending the collision may be such that the fact, taken in the concrete, will repel the presumption, by exonerating the company whose passenger is injured and by casting the whole blame upon the other company. As to the principles which govern the liability toward the injured passenger of his own carrier, as contradistinguished from that of the other railroad company, it must be kept in mind that, as to him, his own carrier is liable for a failure to exercise extraordinary care, while the other railway company is liable only for the failure to exercise what the books designate as reasonable or ordinary care, according to the circumstances; secondly, that while the fact of the collision will create, in favor of the injured passenger, a presumption of negligence against his own carrier, it will not create such a presumption against the other railway company; but the negligence of that company must be affirmatively proved as a fact, and by proving facts from which the deduction of negligence can be reasonably drawn.434

son v. Virginia &c. R. Co., 140 U. S. 435; s. c. 35 L. ed. 458; 11 Sup. Ct. Rep. 859; 44 Alb. L. J. 33. It has been held that an instruction which holds a railway company liable for injury to a passenger in a collision if it was caused by the negligence of its servants, without limiting the negligent acts to those specially mentioned in the petition, is justified by a petition which alleges that the collision occurred in the nighttime between a passenger train which had broken down and a freight train following it, and, generally, that it resulted from the negligence of the company's employés: Gulf &c. R. Co. v. Brown, 16 Tex. Civ. App. 93; s. c. 40 S. W. Rep. 608. In an action for damages resulting from a collision on a railroad during a blizzard, where the cars were SO crowded as to prevent the brakemen from reaching the brakes in time to apply them before the collision, the question whether the crowd was the result of the defendant company's

negligence, and whether, if the brakes had been applied, the collision would have been avoided,— were held to be questions of fact for the jury: Dlabola v. Manhattan R. Co., 29 N. Y. St. Rep. 149; s. c. 8 N. Y. Supp. 334; s. c. aff'd 134 N. Y. 585. 430 This section is cited in §§ 3496. 3502.

431 Kansas City &c. R. Co. v. Stoner, 4 U. S. App. 109; s. c. 49 Fed. Rep. 209. That it creates a presumption of negligence against his own carrier,-see Philadelphia &c. R. Co. v. Boyer, 97 Pa. St. 91. 432 Ante, § 2754.

433 Post, § 3496.

434 Philadelphia &c. R. Co. v. Boyer, 97 Pa. St. 91. In Pennsylvania, decisions are found upholding the senseless and unjust rule that if the plaintiff's own carrier was negligent, that negligence will be imputed to the plaintiff, and he can not recover damages from the other railroad company, for that reason: Philadelphia &c. R. Co. v. Boyer,

§ 2826. Injuries in Shunting Cars against Cars Carrying Passengers. It is also evidence of negligence on the part of a common carrier of passengers in running its cars, to shunt a car against a caboose with such force as to throw to the floor a person whose presence therein is known to the trainmen of the company; 435 to place a car on a side track to enable a shipper to load her goods for shipment, and then, without her knowledge, to back a train from the main track onto such side track with such force as to give the car a heavy and sudden jar, throwing her out of the door and severely injuring her;436 to shunt a freight car, detached from the engine, in front of its passenger depot while passengers are waiting for a past due train,—the question of negligence being for the jury;437 to shunt