loaded coal cars down a grade, without any brakeman on them, against cars standing on the track, which they strike with great violence, rendering the company liable for the death of one who was sitting on the railing of the caboose car near the brake wheel, although he was guilty of contributory negligence in occupying a position of such danger;438 to shunt a car with great force against a mail car, which act was rendered necessary, in making the coupling, by the fact that the spring in the coupling was new and stiff, whereby a mail clerk, while engaged at his work, was thrown against a table and severely injured. If a car is shunted against a freight train with such unusual force and violence as to make the railway company liable for an injury thereby caused to a passenger in the way car unless he is guilty of contributory negligence, then the rule will obtain that contributory negligence will not be imputed to him, where he takes the usual precautions taken by careful persons under such circumstances to avoid any consequence that may be reasonably apprehended. 440

439

§ 2827. Injuries in Consequence of Excessive Speed. It can not be said, as matter of law, that any particular rate of speed is excessive, and hence evidence of negligence, except where there is a statute, or a valid city ordinance having the force of a statute, lim

458 Kansas City &c. R. Co. v. Camp bell, 6 Kan. App. 417; s. c. 48 Pac. Rep. 817.

439 Houston &c. R. Co. v. McCullough, 22 Tex. Civ. App. 208; s. c. 55 S. W. Rep. 392. In this case the court having instructed the jury to find for the defendant if the plaintiff should have known, in the exercise of ordinary care, that the cars were likely to come together hard, and was injured because he did not cease his work when a man of ordinary prudence would have done so, -it was held that another instruction tendered by the defendant, to the effect that if the force used in making the coupling was not greater than a man of ordinary prudence would have used under the circumstances, they should find for the defendant,-was properly refused: Houston &c. R. Co. v. McCullough, 22 Tex. Civ. App. 208; s. c. 55 S. W. Rep. 817. In such an action, where the plaintiff was thrown from a car which he was loading, by reason of an engine being violently backed against it, it was not error to modify a request

for an instruction that, if plaintiff saw the approach of the engine, he was not justified in remaining where he was, so as to read that, if plaintiff knew his position to be dangerous, he would not be justified in remaining there: Illinois &c. R. Co. v. Anderson, 184 Ill. 294; s. c. 56 N. E. Rep. 331; aff'g s. c. 81 Ill. App. 137. Where the plaintiff sued and framed his pleading on the theory of the gross negligence and carelessness of the defendant's engineer, in striking with his engine a car upon which the plaintiff was standing, knowing that the plaintiff was on it, it was held that he could not recover on proof that the engineer was not negligent, but that he was moving his engine under the direction of the signals given by the conductor or by a brakeman: San Antonio &c. R. Co. v. Jazo (Tex. Civ. App.), 25 S. W. Rep. 712 (no off. rep.), an attenuated refinement.

440 Moore v. Saginaw &c. R. Co., 115 Mich. 103; s. c. 4 Det. L. N. 781; 72 N. W. Rep. 1112.

441 This section is cited in §§ 2916,

3485.

444

446

442

iting the rate of speed at which railway trains may be run.**2 In the absence of such a statute or ordinance, railway companies are at liberty to fix the rate of speed of their trains as they think best, provided they do not adopt a rate of speed which subjects the travelling public to great danger and risk; and whether the rate of speed which they adopt is dangerous is to be determined by the circumstances of the case,+43 and is, of course, a question of fact for a jury. This does not mean that a railway carrier of passengers is at liberty, as against its passengers, to run its train at any rate it may see fit, especially on a down grade and around a curve, where a high rate of speed may result in a derailment.445 It is said in one case that a railway company may, without incurring the imputation of negligence, in the absence of a statutory regulation, run a passenger train at the highest rate of speed consistent with the safety of the passengers. But this is very far from being true, sound and just. The company must run the train not only with reference to the safety of the passengers riding thereon, but with reference to persons who may be lawfully upon the track, at highway crossings or at stations, boarding or leaving other trains. Thus, negligence has been justly imputed to the act of running a train at the speed of twentyfive miles an hour between a station house and a train waiting on another track to receive passengers. 447 To run a train at a speed of between twelve and twenty-five miles an hour within the limits of a city, where there is a city ordinance prohibiting the running of trains. at a greater rate than six miles an hour, is at least evidence of negligence, and, under the best conceptions, negligence per se.*** But it is not negligence per se for an engineer or conductor of a railroad train to exceed the rate of speed prescribed by the time-table, where such time-table was framed from considerations of convenience, and not with reference to the rate of speed. which would be safe or prudent.450 The fact of the derailment of a passenger train is prima facie evidence of negligence, such as puts upon the railway company

449

108 Ind. 551; s. c. 7 West. Rep. 33;
Mitchell v. Southern &c. R. Co., 87
Cal. 62; s. c. 25 Pac. Rep. 245; 11
L. R. A. 130.

440 Houston v. Vicksburg &c. R. Co., 39 La. An. 796; s. c. 2 South. Rep. 562.

447 Chicago &c. R. Co. v. Ryan, 62 Ill. App. 264.

448 Gulf &c. R. Co. v. Wagley, 15 Tex. Civ. App. 308; s. c. 40 S. W. Rep. 538.

the burden of showing that it was free from negligence, to the satisfaction of the jury.451 It is especially true that the question goes to the jury under this rule, where there is evidence tending to show that the derailment was produced by driving the train down a steep incline where the track was new and curved, at an unusual rate of speed.452 If a passenger is thrown from the platform of a car on which he is lawfully riding, in consequence of the excessive speed of, the train, considered with reference to the curves and condition of the track, which causes a severe jolt, there will be a case for damages against the company.15

453

§ 2828. Effect of the Acquiescence of the Community in a Particular Rate of Speed. In a case in the New York Court of Appeals in 1864, where the action was to recover damages for the death of a person who had been struck by a railroad train at a crossing within the limits of the city of Troy, the principal ground upon which the negligence of the defendant was predicated was that its train was being run at an unusual and dangerous rate of speed. "This," said Denio, C. J., "involves the question, in the first place, as to the rapidity at which a train may be run in a city, where the intersecting streets are upon the same level. As the law has not fixed the speed at which they may be run, it is generally a question of fact in each case whether the actual rate was excessive or dangerous. Whether it is so or not will depend, to some extent, upon the safeguards which are adopted to prevent accidents. It is not correct to say that, in every case where a fault in this respect is alleged, the question must be submitted to the jury. If it be clearly shown that, on the occasion. in question, the velocity was not greater than that which had been. usually practiced for a considerable period, with the tacit consent of the community, and without accident, it should not be considered an open question whether running at that rate was negligent and · unlawful." In a case in the Supreme Court of Indiana, the lan

451 Ante, § 2810.

452 Mitchell v. Southern &c. R. Co., 87 Cal. 62; s. c. 25 Pac. Rep. 245; 11 L. R. A. 130. Evidence tending to show (among other things) that a rescuing engine with a snow plow approached a stalled train during a snowstorm without slacken ing speed, and ran into such train, killing a passenger in the rear car thereof, was held sufficient to go to the jury on the question of the negligence of the employés of the company, even though a finding that the men on the engine could have seen

the stalled train in time to stop might not be warranted by the evidence: Annas v. Milwaukee &c. R. Co., 67 Wis. 46. Circumstances under which witnesses who saw the train half a mile from the accident, may state the rate of speed at the point where they observed the train: Louisville &c. R. Co. v. Jones, 108 Ind. 551; s. c. 7 West. Rep. 33.

453 Lynn v. Southern &c. Co., 103 Cal. 7; s. c. 24 L. R. A. 170; 36 Pac. Rep. 1018.

454 Wilds v. Hudson River &c. R.

guage of the distinguished judge just quoted was said to go "to the very verge of, if not beyond, the right point upon this question. The community may for a considerable length of time uncomplainingly tolerate a wrong which they are remediless to correct, without that toleration amounting to a tacit consent to its continuance."455 In that case the circuit judge had committed the mistake of applying this idea of the tacit consent of the community to the question of the speed of a railway passenger train in a case where a passenger sued for an injury received from the train being thrown from the track by a broken rail. Of course, if the principle had any foundation in reason, this would be a total misapplication of it; for the tacit consent of a municipal community that trains might run across their streets at a certain rate of speed might be a criterion on the question of negligence in respect of the rate of speed at which such, trains were run at the street crossings of such city, while the same criterion would be wholly inapplicable in respect of the duties of a railway carrier to his passenger. The obligation in the latter case is quite different from what it is in the former case. In the former case no presumption of negligence arises necessarily from the mere happening of the accident; but in the latter case such a presumption generally arises. It was accordingly held error, in an action by a passenger for injuries received under the circumstances stated, to instruct the jury that, in determining whether the rate of speed at which the train was being run was excessive, they should consider "whether the velocity was greater than that which had been practiced before, with the tacit consent of the community, and without accident."456

§ 2829. Injuries to Passengers from Leaving Ice on the Platforms of Cars. It is the duty of railway carriers of passengers, before starting a train, to remove snow from the steps of the cars where passengers would be likely to slip upon it in boarding and alighting. 457 Evidence that snow on the step of a car was hard, as if it had been there some time, raises an inference that the snow was on the step before the train started.45 A railroad company is under no duty to passengers to remove ice from the railing or platform on the front end of an express car upon a passenger train, or to make such platform safe for passengers to ride upon, because passengers

458

Co., 29 N. Y. 315, 326. This doctrine is challenged by the author as unsound, even with respect to speed within the limits of cities.

455 Cleveland &c. R. Co. v. Newell, 75 Ind. 542, 545.

456 Cleveland &c. R. Co. v. Newell, supra.

457 Gilman v. Boston &c. R. Co., 168 Mass. 454; s. c. 47 N. E. Rep. 193.

459 Gilman v. Boston &c. R. Co., 168 Mass. 454; s. c. 47 N. E. Rep. 193.

have no right to go there;450 nor is an elevated railway company chargeable with negligence because of the recent formation of ice on the steps leading to its station.460

§ 2830. Injuries to Passengers through Sudden Jerking, Lurching, etc., of the Car.461-In like manner, a railroad company is liable for an injury visited upon a passenger through any sudden lurching, jerking, stopping, or starting of the car in which the passenger is riding, provided the passenger is himself free from contributory negligence tending to produce the injury." The fact that an injury is visited upon the passenger from this source constitutes prima facie evidence of negligence under the rule res ipsa loquitur, and casts