upon the carrier the burden of showing that the accident took place either without his fault, or through the contributory negligence of the passenger. 463 In those jurisdictions where the rule of procedure obtains which requires the plaintiff in an action for damages grounded upon negligence, to allege and prove at the outset his own freedom. from contributory negligence, it may be assumed that this presumption does not arise until the plaintiff shows that such an act of negligence happened, and that it visited the injury upon him, without any fault on his part. The company may, of course, exonerate itself by showing that the accident happened from some cause beyond its control, or for which it was not responsible, as where a sudden stopping of the train was caused by an unauthorized application of the emergency brake by another passenger, causing the engine and cars to be severed from a part of the train upon which the plaintiff was riding. *64

§ 2831. Cutting Off Sleeping Car and Leaving Passenger Behind.— If a passenger enters a sleeping car upon the assurance of the conductor of the railway company that the car will go with a particular train; and if, thereafter, the sleeper is cut off from the train and left on a siding late at night, this, it has been held, will render the

463 Coudy v. St. Louis &c. R. Co., 85 Mo. 79; Murphy v. St. Louis &c. R. Co., 43 Mo. App. 342; Guffey v. Hannibal &c. R. Co., 53 Mo. App. 462; Consolidated Traction Co. v. Thalheimer, 59 N. J. L. 474; s. c. 37 Atl. Rep. 132; Cook v. Long Island R. Co., 47 N. Y. St. Rep. 200; s. c. 19 N. Y. Supp. 648; s. c. aff'd 138 N. Y. 642.

404 McDonnell v. New York &c. R. Co., 35 App. Div. (N. Y.) 147; s. c. 54 N. Y. Supp. 747; 12 Am. & Eng. Rail. Cas. (N. S.) 175; 5 Am. Neg. Rep. 220; appeal dismissed 159 N. Y. 524 (mem.). For a petition in an action of this kind, set out in detail, which was held to state a good cause of action,-see Garland v. Southern R. Co., 111 Ga. 852; s. c. 36 S. E. Rep. 595. It has been held that a passenger who, in attempting to alight from the train, which has reached his station, is injured by the violent slamming of a door, caused by the sudden stoppage of the train after it had been prematurely set in motion, is not bound to show negligence in not fastening the door, or in stopping the train a second time, in order to recover

damages, if he shows that the train was not stopped a sufficient length of time to permit him safely to alight before it again began to move: Madden v. Missouri &c. R. Co., 50 Mo. App. 666. Circumstances under which the refusal of the court to instruct the jury that the act of the plaintiff in going upon the platform was the cause of the injury, and that the inquiry should be directed to the question whether or not such act was a negligent act, -was held proper: San Antonio &c. R. Co. v. Choate (Tex. Civ. App.), 56 S. W. Rep. 214. Evidence under which an instruction to the effect that if the train stopped before reaching the station, and the plaintiff was led to believe, from .the words or acts of an employé of the defendant, that it was a proper time for her to alight, and, in attempting to do so, she was thrown to the ground by the sudden jerk of the car, or in any other manner, and injured, the defendant was guilty of negligence,-was not erroneous, as not supported by the evidence: Smitson v. Southern &c. R. Co., 37 Or. 74; s. c. 60 Pac. Rep. 907.

carrier liable to a passenger who has been left on the sleeper with a sick child, while his baggage, including medicines, has been carried off on the train.465

§ 2832. Duty to Stop and Rescue Passengers.—It is the duty of a railroad company, where a passenger falls overboard from its train, and who is liable to perish or to suffer great injury unless rescued, to stop the train and rescue him, provided it can do so without endangering the safety of other passengers on the train, or of its employés in charge of it, by throwing it out of its schedule time and bringing it into collision with other trains.466

§ 2833. Duty of Railway Companies to Heat their Cars.By the principles of the common law, a railway carrier of passengers is bound to use reasonable care and to make reasonable efforts, to the end of keeping its passenger coaches comfortably warm in cold weather, and is liable in damages to a passenger for any discomfort or illness it may produce by its failure of duty in this respect.*** This duty is enforced by statute in some jurisdictions. Such statutes are not subject to any constitutional objection, but are valid police regulations.468 The duty is clearer where women and little children are in the coaches, whose discomfort from the want of heat is made known to the conductor and the attending brakeman, and where heat is requested.469 If severe illness results to a passenger from the failure of a railway company to heat the car in which he is riding during cold weather, especially where there is a stove therein and ample opportunity to supply the needed heat, and the employés on the train are requested by the passenger to supply it, but fail to do so, the company is guilty of actionable negligence. 470 Nor will the

465 Norfolk &c. Co. v. Lipscomb, 90 Va. 137; s. c. 20 L. R. A. 817; 17 S. E. Rep. 809.

466 Cincinnati &c. R. Co. v. Kassen, 49 Ohio St. 230; s. c. 16 L. R. A. 674; 31 N. E. Rep. 282; Cincinnati &c. R. Co. v. Cooper, 120 Ind. 469; s. c. 6 L. R. A. 241; 22 N. E. Rep. 340. A decision of the Court of Appeals of Kentucky makes the qualification to the above statement, that the passenger has been thrown or pushed from the train without any fault on his own part: Reed v. Louisville &c. R. Co., 20 Ky. L. Rep. 815; S. C. 47 S. W. Rep. 591; 44 L. R. A. 823; rehearing denied 20 Ky. L. Rep. 990; 48 S. W. Rep. 416; 44 L. R. A. 824. This qualification may have been appli

cable to the case in judgment, but it is believed that the obligation is just as strong where the passenger has been pushed off, or has fallen off, wholly through his own fault.

467 Ft. Worth &c. R. Co. v. Hyatt, 12 Tex. Civ. App. 435; Dillingham v. Hodges (Tex. Civ. App.), 26 S. W. Rep. 86 (no off. rep.).

468 New York &c. R. Co. v. New York, 165 U. S. 628; s. c. 41 L. ed. 853.

469 Fort Worth &c. R. Co. v. Hyatt, 12 Tex. Civ. App. 435; s. c. 3 Am. & Eng. Rail. Cas. (N. S.) 397; 34 S. W. Rep. 677.

470 Taylor v. Wabash R. Co. (Mo.), 38 S. W. Rep. 304; s. c. 42 L. R. A. 110 (no off. rep.).

passenger be prevented from recovering damages by reason of his failure to complain to the servants of the company of the want of heat; nor by remaining in the car after he has an opportunity to get off; nor by failing to make the attempt to get wraps from his trunk which is in the baggage-car; nor by taking off his overcoat and putting it around his wife to keep her warm; nor by the fact of wearing inadequate clothing to meet the demands of the season.472

§ 2834. Duty to Light their Cars.-A railway company is under the obvious duty of keeping the interior of its ordinary passenger coaches lighted at night, to the end of protecting its passengers from thieves, of enabling them to see their way in attending to their rcasonable comforts and in getting on and off the train. The custom of keeping cars so lighted is universal, and the absence of lights in such vehicles, except in case where the absence of them may have been due to some unavoidable accident, would not be tolerated by the public or by the law. The universal prevalence of the custom of keeping the body of such coaches lighted no doubt furnishes the reason why the propriety of it has so seldom been the subject of consideration by the courts.473 But this statement does not apply to sleeping cars. Here the custom is that the servants are required to turn down the lights so that the light will not prevent passengers from sleeping, while at the same time the porter of the car is supposed to keep a watch at the end of the aisle, a duty which is too often neglected. But the necessity of turning down the lights in a sleeping car, in order not to prevent the passengers from sleeping, does not apply to that portion of the car in which the water-closet is situated; but whether the railway company or sleeping car company is guilty of negligence in failing to keep that part of the sleeping car lighted at night has been held, with obvious propriety, a question of fact for the jury. Nor is a passenger, who is injured while groping about

474

471 Hastings v. Northern R. &c. Co., begin their return journey, except 53 Fed. Rep. 224, 226.

472 Taylor v. Wabash R. Co. (Mo.), 42 L. R. A. 110; s. c. 38 S. W. Rep. 304 (no off. rep.). According to one court, the failure of a mail agent, riding upon a passenger train, to guard against the effects of a want of heat in the car in which he rides, may be ascribed to him as contributory negligence: Turrentine V. Richmond &c. R. Co., 92 N. C. 638.

47 A railway carrier of passengers is not bound to light its cars and keep them lighted, while they are standing on its tracks waiting to

for a reasonable time before starting; and it can not be affirmed as a matter of law that fifteen minutes is not a reasonable and sufficient time in which to light the cars of a passenger train at a summer resort, and give notice to a party of excursionists to prepare to start: Hodges v. New Hanover Transit Co., 107 N. C. 576; s. c. 12 S. E. Rep. 597.

474 Piper v. New York &c. R. Co., 76 Hun (N. Y.) 44; s. c. 59 N. Y. St. Rep. 629; 27 N. Y. Supp. 593; rehearing denied in 59 N. Y. St. Rep. 884; s. c. 28 N. Y. Supp. 1114.

at night trying to find an unlighted water-closet, imputable with contributory negligence.475 While the railroad company is under no legal duty of providing the public with vestibuled trains, yet if it does so, it is under the legal duty of exercising the high degree of care which the law puts upon carriers of passengers to the end of maintaining them in a reasonably safe condition; and this may extend to the duty of lighting the vestibule, so as to make the company liable to a passenger for an injury sustained by him in walking by mistake, in the dark, out of an outside door which has been left open.70 In such a case, whether the railroad company was guilty of negligence was held to be a question of fact for the jury.

477

§ 2835. Liability of Railway Carrier for Communicating Contagious Diseases.-It has been held that a railway company is not liable to a passenger to whom a contagious disease has been communicated from the ticket agent by a railway ticket sold to such passenger, where neither the company nor any of its superior officers had knowledge that the ticket agent had such a disease. 478

§ 2836. Application of these Principles in the Case of Elevated Railways. In the application of the foregoing principles to the carriage of passengers upon elevated railways, we find that actionable negligence has been predicated upon the fact of a passenger being injured by the negligence of a guard on such a railway, without reference to the question whether the negligence was direct or intentional;479 upon the act of a guard in closing the gate suddenly and without notice to a passenger, giving him a violent push which throws him off the train and upon the platform;480 upon the reckless act of the engineer in starting the train while the track in front of it is crowded with people who have just alighted from it;481 upon the

47 Piper v. New York &c. R. Co., supra.

476 Bronson v. Oakes, 76 Fed. Rep. 734; s. c. 40 U. S. App. 413; 22 C. C. A. 520.

47 Bronson v. Oakes, supra. Contrary to the foregoing text, and manifestly unsound, is a decision to the effect that a railway carrier owes no duty to a passenger, as a matter of law, to keep the vestibule doors of coaches closed, or the vestibules lighted, or its grounds away from a station lighted and free from obstructions: Ward v. Chicago &c. R. Co., 165 Ill. 462; s. c. 46 N. E. Rep. 365; rev'g s. c. 61 Ill. App. 530.

478 Long v. Chicago &c. R. Co., 48 Kan. 28; s. c. 15 L. R. A. 319; 11 Rail. & Corp. L. J. 717; 28 Pac. Rep. 977. As to liability for communicating Texas or Indian fever to cattle, see Vol. I, § 921.

479 Koetter v. Manhattan R. Co., 59 Hun (N. Y.) 623 (mem.); s. c. 36 N. Y. St. Rep. 611; s. c. aff'd 129 N. Y. 668.

480 Miller v. Manhattan R. Co., 73 Hun (N. Y.) 512; s. c. 56 N. Y. St. Rep. 189; 26 N. Y. Supp. 162.

481 Weiler v. Manhattan R. Co., 53 Hun (N. Y.) 372; s. c. 25 N. Y. St. Rep. 543; 6 N. Y. Supp. 320; s. c. aff'd 127 N. Y. 669.

act of a trainman in opening the door of a car when the train is approaching a station, and in letting go of the door just as a passenger takes hold of the door casing to save himself from falling, thereby causing the door to shut and injure the passenger's hand;482 upon the act of the guard, after the arrival of the train at the station, and while a passenger is waiting in the doorway of the station for the guard to open the gates to the platform from which the cars are to be mounted, in opening the gate and pulling the strap at the same instant, thus signaling the train to stop, the motion of the car causing the door to swing to upon the passenger's finger. 483 While carriers of passengers are under a legal obligation of protecting their passengers from the misconduct of other passengers on their vehicles,484 it has been held that an elevated railroad company is not liable to a female passenger for an injury caused by a drunken man stepping on her foot, where his inebriety did not make him belligerent or loquacious, and the injury was unintentional, and the conductor, although his attention was called to the man, neither saw nor received information of any impropriety, or anything to indicate a disturbance. 185

§ 2837. Statutory Safeguards.-The Code of Tennessee contains. a chapter entitled "Of certain regulations for the protection of life and property upon railroads." Among these regulations is the following: "When any person, animal, or obstruction, appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."486 "Every railroad company that fails to observe these precautions or cause them to be observed by its agents or servants shall be responsible for all damages to persons or property occasioned by, or resulting from, any accident or collision that may occur.' It has been held that this statute does not extend to the protection of passengers upon railway trains. The court reasoned that for

99487

actionable negligence, although the peril is increased thereby,-especially if the passenger could have safely stepped off upon the platform of the station: Robinson v. Manhattan R. Co., 5 Misc. (N. Y.) 209; s. c. 54 N. Y. St. Rep. 792; 25 N. Y. Supp. 91.

484 Post, § 3083, et seq.

485 Thomson v. Manhattan R. Co., 75 Hun (N. Y.) 548; s. c. 59 N. Y. St. Rep. 621; 27 N. Y. Supp. 608. 486 Tenn Code, § 1166, sub-sec. 5. Ibid., § 1167.

487

305