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. In such a case, whether the railroad company was guilty of negligence was held to be a question of fact for the jury.*77

476

§ 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.

477 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 III. 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, 485

§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."487 It has been held that this statute does not extend to the protection. of passengers upon railway trains. The court reasoned that for

482 Colwell v. Manhattan R. Co., 32 N. Y. St. Rep. 991; s. c. 10 N. Y. Supp. 636.

483 Baker v. Manhattan R. Co., 118 N. Y. 532; s. c. 29 N. Y. St. Rep. 936; 23 N. E. Rep. 88. But it has been held that an error of judgment committed by an employé of such a company in not opening the gate of a car upon an elevated railway train, in an emergency occasioned by the misconduct of a passenger in clinging to the steps of the car after it is in motion, does not constitute

VOL. 3 THOMP. NEG.-20

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. 487 Ibid., § 1167.

305

488

such protection the common law affords a complete and adequate remedy, and that the statute has given the common-law remedy no strength. This was certainly a very weak reason, and an able judge dissented. A statute of Nebraska contains this provision: "Every railroad company shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in case where the injury done arises from the criminal negligence of the person injured, or where the injury complained of shall be the violation of some express rule or regulation of said road, actually brought to his or her notice."489 This statute is not penal, but is remedial. It gives a substantive right of action, which, when it has attached by reason of an injury received within the State, may be enforced in any court, within or without the State, having jurisdiction of the subject-matter and of the parties. In such an action the statute furnishes the measure of the plaintiff's right of recovery, so far as its provisions extend.490 The "criminal negligence" intended by this statute is a flagrant and reckless disregard of one's own safety and a willful indifference to the injury which is liable to follow the act done or omitted. +91 It means gross negligence. Under the Code of Georgia, a legal presumption arises from the fact of an injury caused by the running of the cars of a railway company. In an action for an injury from such a source, the plaintiff is not therefore required to prove negligence on the part of the defendant by a preponderance of the evidence.193

192

§ 2838. Derailments from Other Causes than Defects in Carrier's Roadway, Vehicle, etc.-The doctrine that a railway carrier of pas

1000.

402 Ga. Code, § 3033.

488 Louisville &c. R. Co. v. McKen- Cas. (N. S.) 476; 66 N. W. Rep. na, 71 Tenn. (7 Lea) 313. Deaderick, C. J., dissented. The statute of New York (New York Laws 1887, ch. 11, as amended by New York Laws 1888, ch. 189), relating to the heating of steam passenger railroad cars, includes all companies in New York State having fifty miles and upward of railroad in use, although they are not wholly within the limits of that State: People v. New York &c. R. Co., 55 Hun (N. Y.) 409; s. c. 29 N. Y. St. Rep. 172; 8 N. Y. Supp. 672; s. c. aff'd 123 N. Y. 635.

489 Comp. Stat. Neb., ch. 72, art. 1, § 3.

493 Killian v. Georgia R. &c. Co., 97 Ga. 727; s. c. 25 S. E. Rep. 384. This statute (Ga. Code 1882, § 3033) is not confined to injuries inflicted by railroads on passengers. It reads as follows: "A railroad company shall be liable for any damage done to persons, stock or other property, by the running of locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that

490 Clark v. Russell, 97 Fed. Rep. their agents have exercised all or

900.

491 Chicago &c. R. Co. v. Hyatt, 48 Neb. 97; s. c. 4 Am. & Eng. Rail.

dinary and reasonable care and diligence, the presumption in all cases being against the company."

sengers is bound to use the highest degree of care and vigilance which human foresight can bestow, has been applied in cases of injuries received in consequence of passenger trains becoming derailed through collisions with cattle upon the track. Obviously, the same care and vigilance must be exerted by the railway company in keeping cattle from its track as it is required to exert in having its roadway otherwise safe for the purpose intended. The mere fact of a derailment from such a cause raises a prima facie case of negligence, and this case is affirmed where the evidence shows that the collision was owing to the fact that the train was running at a dangerous speed, or to the fact that the cattle came upon the track owing to the failure of the railway company to fence its track, and to erect suitable cattleguards. Nor will it be any defense to an action for injuries to a passenger in a collision of the defendant's train with a cow outside of village limits, which would not have occurred if it had fenced its track beyond and constructed a cattle-guard at such limits, that the cow entered upon its track within the village limits at a point where the company was not bound by law to maintain a fence.495 Except

where the cattle with which the train has come in contact have come upon the track at a highway crossing, the inquiry is always pertinent, on the question of the negligence of the railway company, whether it might, by fencing its track, and establishing cattle-guards, have prevented them from coming upon its track.496

494 Atchison &c. R. Co. v. Elder, 149 Ill. 173; s. c. 36 N. E. Rep. 565; aff'g s. c. 50 Ill. App. 276.

496 Atchison &c. R. Co. v. Elder, 149 Ill. 173; s. c. 36 N. E. Rep. 565; aff'g s. c. 50 Ill. App. 276.

4 Gulf &c. R. Co. v. Wilson, 79 Tex. 371. In a nisi prius case in Pennsylvania, tried before Associate Justice Williams, it was reasoned that there is not a conclusive presumption of negligence or omission of this duty in every case of injury to passengers caused by cattle being on its track. At the crossing of public roads, or wherever cattle are in the habit of straying, or known to be liable to stray on the track, it was held to be the duty of the company to use the utmost vigilance to keep them off; and near such places to erect cattle-guards, put up fences, or station watchmen for that purpose; and a failure to do so is negligence rendering them liable for all injuries occasioned thereby. In the particular case, it was held that, whether the spot on the road where

the injury occurred was or was not so commonly infested with cattle as to require a fence or cattle-guard, was a question for the jury: Wright v. Pennsylvania R. Co., 3 Pittsb. (Pa.) 116. A railroad company has been held liable for an injury to a passenger resulting from the derailment of a train because an animal, knocked down by a preceding train, was left in too close proximity to the track, if the employés on the latter train knew that it had been knocked down and was in such proximity to the track as to endanger the safety of other trains: Mexican &c. R. Co. v. Lauricella (Tex. Civ. App.), 26 S. W. Rep. 301 (no off. rep.). It has been held that one who is injured by the derailing of a railway car on which he is a passenger, caused by the malicious act of one not in the employ of the company, can not recover against the company for the damage inflicted: Houston &c. R. Co. v. Lee, 69 Tex. 556; s. c. 7 S. W. Rep. 324; but this statement, in its nakedness,

such protection the common law affords a complete and adequate remedy, and that the statute has given the common-law remedy no strength.88 This was certainly a very weak reason, and an able judge dissented. A statute of Nebraska contains this provision: "Every railroad company shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in case where the injury done arises from the criminal negligence of the person injured, or where the injury complained of shall be the violation of some express rule or regulation of said road, actually brought to his or her notice."489 This statute is not penal, but is remedial. It gives a substantive right of action, which, when it has attached by reason of an injury received within the State, may be enforced in any court, within or without the State, having jurisdiction of the subject-matter and of the parties. In such an action the statute furnishes the measure of the plaintiff's right of recovery, so far as its provisions extend.490 The "criminal negligence" intended by this statute is a flagrant and reckless disregard of one's own safety and a willful indifference to the injury which is liable to follow the act done or omitted.491 It means gross negligence. Under the Code of Georgia,192 a legal presumption arises from the fact of an injury caused by the running of the cars of a railway company. In an action for an injury from such a source, the plaintiff is not therefore required to prove negligence on the part of the defendant by a preponderance of the evidence.493

§ 2838. Derailments from Other Causes than Defects in Carrier's Roadway, Vehicle, etc.-The doctrine that a railway carrier of pas

488 Louisville &c. R. Co. v. McKenna, 71 Tenn. (7 Lea) 313. Deaderick, C. J., dissented. The statute of New York (New York Laws 1887, ch. 11, as amended by New York Laws 1888, ch. 189), relating to the heating of steam passenger railroad cars, includes all companies in New York State having fifty miles and upward of railroad in use, although they are not wholly within the limits of that State: People v. New York &c. R. Co., 55 Hun (N. Y.) 409; s. c. 29 N. Y. St. Rep. 172; 8 N. Y. Supp. 672; s. c. aff'd 123 N. Y. 635.

450 Comp. Stat. Neb., ch. 72, art. 1, § 3.

Cas. (N. S.) 476; 66 N. W. Rep. 1000.

492 Ga. Code, § 3033.

493 Killian v. Georgia R. &c. Co., 97 Ga. 727; s. c. 25 S. E. Rep. 384. This statute (Ga. Code 1882, § 3033) is not confined to injuries inflicted by railroads on passengers. It reads as follows: "A railroad company shall be liable for any damage done to persons, stock or other property, by the running of locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that

490 Clark v. Russell, 97 Fed. Rep. their agents have exercised all or

900.

491 Chicago &c. R. Co. v. Hyatt, 48 Neb. 97; s. c. 4 Am. & Eng. Rail.

dinary and reasonable care and diligence, the presumption in all cases being against the company."