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.494 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.*96 494 Atchison &c. R. Co. v. Elder, 149 Ill. 173; s. c. 36 N. E. Rep. 565; aff'g s. c. 50 Ill. App. 276. 45 Atchison &c. R. Co. v. Elder, 149 Ill. 173; s. c. 36 N. E. Rep. 565; aff'g s. c. 50 Ill. App. 276. 400 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.488 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, 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,493 492 § 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. 480 Comp. Stat. Neb., ch. 72, art. 1, § 3. 190 Clark v. Russell, 97 Fed. Rep. 900. 491 Chicago &c. R. Co. v. Hyatt, 48 Neb. 97; s. c. 4 Am. & Eng. Rail. 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 their agents have exercised all ordinary 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.196 494 Atchison &c. R. Co. v. Elder, 149 Ill. 173; s. c. 36 N. E. Rep. 565; aff'g s. c. 50 Ill. App. 276. 435 Atchison &c. R. Co. v. Elder, 149 III. 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 $2839. Instances where the Railway Carrier of Passengers was Held Liable.-Evidence of negligence sufficient to take the question to the jury and charge the railway carrier of passengers with liability in damages has been discovered in evidence tending to prove the following facts:-That a passenger, standing on the platform of a station, waiting for a train, had lost the sight of one eye by reason of sparks falling from the ash-pan of a locomotive which drew a train rapidly past the, platform, the evidence tending to show that a properly constructed ash-pan would not scatter sparks;" .497 that a railway company, as a matter of convenience, left its passenger coach standing upon the crossing of another railroad, where it was struck by cars detached from a freight train on the other road, killing a passenger thereon,-notwithstanding a special finding of the jury that the collision could not have been reasonably anticipated;498 that a temporary foot-rest, improvised for the occasion, on a hand car, gave way while the car was running unusually fast, injuring one who was riding as a passenger thereon;199 that a servant of a railway passenger carrier negligently and violently pulled the bell-rope passing through a passenger coach without warning a passenger who was near, so that it struck him in the eye, severely injuring him;500 and in the cases mentioned in the marginal note.501 can not pass unchallenged. It necessarily presupposes that the railway company maintains a reasonable system of inspection for the purpose of guarding against such accidents. It is well known that, in the conduct of their business, railway companies are liable to make enemies in the persons of employés discharged for neglect of duty, tramps or other trespassers expelled from their trains, farmers whose cattle are killed on the track, where the damages are not paid, and in many other cases. It is well known also that many railroad accidents have been the work of trespassers in drawing the spikes from rails, in misplacing switches, in placing obstructions on the track, and the like. It is therefore the most obvious suggestion that the high degree of care which the law puts upon a railway carrier of passengers requires such carrier to maintain a constant inspection of its track with a view to preventing trespasses, or of signaling its trains in time to avoid disasters resulting therefrom. That the company has discharged this duty, but that nev ertheless the act of the trespasser has been so sudden or so secret as to escape detection through an ordinary inspection, is a necessary premise which must be understood in connection with the statement of the foregoing proposition. If this duty has not been discharged by the company, then it is just as much liable for an injury to a passenger through the act of a trespasser, as for any other injury. V. 407 Philadelphia &c. R. Co. Young, 90 Fed. Rep. 709; s. c. 62 U. S. App. 429; 33 C. C. A. 251; 5 Am. Neg. Rep. 541. 498 Kellow v. Central &c. R. Co., 68 Iowa 470. 499 International &c. R. Co. V. Prince, 77 Tex. 560; s. c. 14 S. W. Rep. 171. 500 Thompson v. Yazoo &c. R. Co., 47 La. An. 1107; s. c. 17 South. Rep. 503. 501 Also where a passenger was thrown from the platform of a car by a sudden increase of speed in the train while awaiting an opportunity to alight after the train had slowed down sufficiently to enable him to alight in safety: San Antonio &c. § 2840. Instances where the Carrier was Exonerated from the Charge of Negligence.-The courts have refused to impute negligence to railway carriers of passengers under the following circumstances: Where a passenger dropped a bag containing money and jewelry out of the window while endeavoring to close the window, and then endeavored to recover its value from the railroad company, because of its refusal to stop the train in order that the passenger might get it ;502 where a passenger, after she had alighted from the train, was injured by a bundle thrown by an expressman, who was not a servant or agent of the company; 503 where a passenger, who was entitled to passage partly by rail and partly by boat, was injured by putting his hand through the glass in a swinging door in a passage-way leading to the wharf,-there being no evidence of negligence in its construction or use, or of its want of fitness for the purpose for which it was used;50 where a passenger on a railroad train, sitting next to an open window, received a blow on his eye from some hard substance-probably a piece of coal-which had been hurled with considerable force, while the engine of another train of the same company, passing in the opposite direction, was directly opposite the window where the passenger sat,-the evidence furnishing nothing more to explain the cause of the accident;505 where a R. Co. v. Dykes (Tex. Civ. App.), 45 S. W. Rep. 758 (no off. rep.). And where a railway passenger, without contributory negligence, had his fingers mashed by the fall of the iron bar of the seat next to the aisle, which a brakeman, in reversing the seats, had left slightly raised: Missouri &c. R. Co. v. Dill (Tex. Civ. App.), 40 S. W. Rep. 347 (no off. rep.). And where a passenger was standing at the rear door of the coach, viewing the scenery, with his left hand resting on the door of the water-closet to steady himself, and the conductor came up from behind, and opened the door of the watercloset and shut it quickly, catching and crushing the passenger's little finger, which had slipped into the crevice without the passenger's knowledge, the question of the defendant's negligence and of the plaintiff's contributory negligence being for the jury: Romine v. Evansville &c. R. Co., 24 Ind. App. 230; s. c. 56 N. E. Rep. 245. And where a passenger in the defendant's car was injured by falling over a mail bag thrown upon the platform between the door of the waiting-room and the train which she intended to take, the platform being insufficiently lighted, and the company knowing that the mail clerk was accustomed to throw mail bags on the platform at that station: Ayres v. Delaware &c. R. Co., 4 App. Div. (N. Y.) 511; s. c. 40 N. Y. Supp. 11. And where the valise of a passenger was allowed to stand in the passageway in the aisle of a car for the space of three hours, and a female passenger fell over it and was injured, after another passenger had stumbled over it while entering the car: Chicago &c. R. Co. v. Buckmaster, 74 Ill. App. 575. 502 Henderson v. Louisville &c. R. Co., 123 U. S. 61; s. c. 31 L. ed. 92. 503 Winship v. New York &c. R. Co., 170 Mass. 464; s. c. 49 N. E. Rep. 647. 504 Hayman v. Pennsylvania R. Co., 118 Pa. St. 508; s. c. 11 Atl. Rep. 815; 20 W. N. C. (Pa.) 466. 505 Pennsylvania R. Co. v. MacKinney, 124 Pa. St. 462; s. c. 17 Atl. Rep. 14; 2 L. R. A. 820; 46 Phila. Leg. Int. 301; 20 Pitts. L. J. (N. S.) 2; 23 W. N. C. (Pa.) 353. The court held that the fact of the accident did not |