tion.755 Accordingly, it has been held that one who insists upon travelling upon a railroad train after a schedule of its time and stoppages has been published, to a point at which he is informed the train will not stop, can not recover damages for being carried beyond that point.75

§ 2898. Circumstances under which the Carrier, Taking the Passenger beyond his Station, will be Exonerated. It is not to be inferred from anything which has preceded that a railway carrier of passengers will be liable in any event for carrying a passenger beyond the station of his destination, although the passenger himself may be totally without fault. The facts may be such in particular cases as to make it reasonable and even obligatory, not to stop the train at the particular station. Thus, although there may be a statutory obligation, enforced by a penalty, to stop the train at the destination of the passenger, yet the statute is to be construed reasonably, and not as demanding impossible conduct, or conduct which will imperil the safety of the persons on the train. Therefore, where the passenger was carried beyond his station, by reason of the fact that the track was badly drifted with snow in front of the station, so that it was uncertain whether it could be started if stopped there, and the conductor and engineer, in the exercise of their honest judgment, considered it better to stop the train at a point three-quarters of a mile beyond the station, than at a point a short distance before arriving at it, at which place, so determined upon, there was a comparatively clear track, and their conclusion was fortified by the fact that the passenger train was followed by a freight train, creating danger of a collision,-it was held that the statutory penalty could not be recovered for carrying the passenger upon the train beyond his destination.757 So, the fact that a passenger train ran past the usual stopping place at a particular station, was held not actionable negligence, where it indisputably appeared that the usual air brakes were in good condition when the train started, but that the air cock, while the train was in progress, had been turned by an accident which

755 Ante, § 2561, et seq.

750 Texas &c. R. Co. v. White, 4 Wills. (Tex. App. Civ. Cas.) 451; s. c. 17 S. W. Rep. 419. It was held in the same case that, after being informed by the conductor that the train did not stop at the place called for by his ticket, and after refusing to get off at the last station before reaching that point, the passenger could not recover dam

ages for injury occasioned to his feelings by the conductor repeating to him that he was only "hunting a lawsuit," especially where the conductor apologized for the language used: Texas &c. R. Co. v. White, 4 Wills. (Tex. App. Civ. Cas.) 451; s. c. 17 S. W. Rep. 419.

757 Reed v. Duluth &c. R. Co., 100 Mich. 507; s. c. 59 N. W. Rep. 144.

could not have been prevented.758 Again, there is always, especially in the case of long trains, more or less difficulty in bringing a train to a sudden stop at the exact place at which it ought to stop, without the necessity of backing it up or starting it forward. With this well-known fact in view, it is held that the fact that a train stops at a point beyond the station for the mere space of time necessary to enable the engineer, by reversing the engine, to move backward to the proper stopping place, is not negligence per se; though it might be so if the train were stopped for such a length of time as to be tantamount to an invitation to the passengers to alight, and the backward movement was commenced without warning while they were alighting.759

§ 2899. Carrier not Liable for Injuries Resulting from Mistakes of Passenger Carried beyond his Station.-The reason is that such mistakes, unless they are such as the carrier ought to anticipate and provide against,760 are not deemed the proximate cause of the injury. Thus, while it is the duty of a railroad company to stop its train at a station to which it has contracted to carry a passenger, and to land him there safely and conveniently, yet the fact that the company neglects its duty and the train passes the station without stopping, does not justify the passenger in jumping from the moving train, under circumstances where the act would be apparently dangerous, unless expressly or impliedly invited to do so by the employés of the company. An injury so received will be ascribed, not to the negligence of the carrier in taking him beyond his destination, but to his own rashness and folly in so leaping from the carrier's vehicle.761 So, it has been held that a passenger who is carried by his station without knowledge of the trainmen, and is injured while attempting, without their knowledge, to alight at the next station, on the opposite side of the train from the station, can not recover damages from the railroad company.762 Moreover, it is the duty of the passenger who has been carried beyond his proper station to do what he reasonably can to prevent the enhancement of the damages which the mischance. has visited upon him. If, for example, he is obliged to leave the train in the night, and thereafter makes no attempt to secure quarters for the night in the neighborhood, although such an attempt might be successful, but nevertheless attempts to walk back to his destination after midnight, he can not recover damages for the increased

758 Porter v. Chicago &c. R. Co., 80 Mich. 156; s. c. 44 N. W. Rep. 1054.

750 Sherwood v. Chicago &c. R. Co., 82 Mich. 374; s. c. 46 N. W. Rep. 773; 44 Am. & Eng. Rail. Cas. 337. 760 Vol. I, § 50.

761 Walker v. Vicksburg &c. R. Co., 41 La. An. 795; s. c. 7 L. R. A. 111; 6 South. Rep. 916; 41 Am. & Eng. Rail. Cas. 172.

72 Nichols v. Chicago &c. R. Co., 90 Mich. 203; s. c. 51 N. W. Rep. 364.

physical and mental suffering which he brings upon himself by making such attempt.763

764

§ 2901. What Care Due to Passengers on Freight Trains." We find the courts agreed upon the proposition that where a railway carrier carries passengers upon its freight trains, it thereby assumes toward them the relation of a carrier toward his passenger. And while in such a case it is a reasonable conclusion that the passenger assumes the increased risk incident to the operation and management of such trains, yet, subject to this qualification, the railway company becomes bound in favor of the passenger by all the obligations of a common carrier upon a regular passenger train.765

763 Texas &c. R. Co. v. Cole, 66 Tex. 562. Upon the question of the remoteness of damages in its application to such cases-a question which will be considered in its general applications hereafter-it has been held that a passenger on a railroad train who alights two miles distant from her destination because of a mistake of the trainman in calling the name of the station, and who walks in the evening during a rainstorm to such place of destination, although her health is in a precarious condition, without inquiring whether she can procure a conveyance, or whether there is a convenient place in the vicinity where she can be cared for over night.can not recover for injuries resulting from her exposure: Childs v. New York &c. R. Co., 77 Hun (N.

Y.) 539; s. c. 60 N. Y. St. Rep. 276; 28 N. Y. Supp. 894.

764 This section is cited in §§ 2538, 2714, 2906.

765 Pennsylvania Co. v. Newmeyer, 129 Ind. 401; s. c. 28 N. E. Rep. 860; International &c. R. Co. v. Irvine, 64 Tex. 529; Hanson v. Mansfield &c. R. Co., 38 La. An. 111; s. c. 58 Am. Rep. 162; Ohio Valley R. Co. v. Watson, 93 Ky. 654; s. c. 19 L. R. A. 310; 14 Ky. L. Rep. 611; 21 S. W. Rep. 244; Chicago &c. R. Co. v. Arnol, 144 Ill. 261; s. c. 19 L. R. A. 313; 33 N. E. Rep. 204; Everett v. Oregon &c. R. Co., 9 Utah 340; s. c. 34 Pac. Rep. 289; Central R. Co. v. Lippman, 110 Ga. 665; s. c. 36 S. E. Rep. ́ 202; Woolery v. Louisville &c. R. Co., 107 Ind. 381; s. c. 5 West. Rep. 667. Compare Harris v. Hannibal &c. R. Co., 89 Mo. 233; s. c. 5 West. Rep. 412.

§ 2902. Further of the Care to be Exercised in Conveying Passengers upon Freight Trains.-The same extraordinary care which the law imposes upon carriers of passengers generally, is as incumbent upon railway companies when carrying passengers upon freight trains, as when carrying them upon regular or special passenger trains; but with the qualification that the care here demanded is a care which is consistent with the practical and efficient operation and use of the train, with reference to the fact that its primary office is the carriage of freight, and not the carriage of passengers, and that its necessary operations in the carriage of freight may and will subject passengers to greater dangers than those to which they are subjected on passenger trains. It is therefore, perhaps, accurate to say that a railroad company operating a freight train, and permitting passengers to ride thereon, is required to exercise the highest degree of care for the safety of the passengers, consistent with the operation of the train for its primary uses, and that passengers on such trains assume the risks incident to the proper operation of them for the loading, unloading and carriage of freight.766 Passengers on freight trains may claim the exercise of this degree of care in their behalf, although not entitled to all the conveniences and freedom from danger afforded by the regular passenger train.77 The company is held to as strict an accountability for the negligence of its employés in the management of a train with a caboose attached in which passengers are

TCG Steele v. Southern R. Co., 55 S. C. 389; s. c. 33 S. E. Rep. 509; 14 Am. & Eng. Rail. Cas. (N. S.) 350; Schilling v. Winona &c. R. Co., 66 Minn. 252; s. c. 68 N. W. Rep. 1083; Oviatt v. Dakota &c. R. Co., 43 Minn. 300.

767 Moore v. Saginaw &c. R. Co., 115 Mich. 103; s. c. 4 Det. L. N. 781; 72 N. W. Rep. 1112; Louisville &c. R. Co. v. Bisch, 120 Ind. 549; s. c. 22 N. E. Rep. 664; New York &c. R. Co. v. Doane, 115 Ind. 435; s. c. 17 N. E. Rep. 915; 1 L. R. A. 157; 7 Am. St. Rep. 451; Chicago &c. R. Co. v. Arnol, 144 Ill. 261; s. c. 19 L. R. A. 313; 33 N. E. Rep. 206. The doctrine of the text, with some variation of expression, but without much variation of real meaning, will be found expressed in the following cases: Olds v. New York &c. R. Co., 172 Mass. 73; s. c. 51 N. E. Rep. 451; Dunn v. Grand Trunk R. Co., 58 Me. 187; s. c. 4 Am. Rep. 272; Wallace v. Western &c. R. Co., 98 N. C. 494; Crine v. East Tennessee &c. R. Co., 84 Ga. 651; s. c. 11 S. E. Rep. 557;

Delaware &c. R. Co. v. Ashley, 67 Fed. Rep. 209; s. c. 28 U. S. App. 375; 14 C. C. A. 368; Indianapolis &c. R. Co. v. Horst, 93 U. S. 291; s. c. 23 L. ed. 898; Hazard v. Chicago &c. R. Co., 1 Biss. (U. S.) 503: Ohio &c. R. Co. v. Dickerson, 59 Ind. 317; Missouri &c. R. Co. v. Holcomb, 44 Kan. 332; s. c. 24 Pac. Rep. 467; Illinois &c. R. Co. v. Axley, 47 III. App. 307; Mexican &c. R. Co. v. Lauricella (Tex. Civ. App.), 26 S. W. Rep. 301; Guffey v. Hannibal &c. R. Co., 53 Mo. App. 462; Oviatt v. Dakota &c. R. Co., 43 Minn. 300; s. c. 45 N. W. Rep. 436; Ball v. Mabry, 91 Ga. 781; s. c. 18 S. E. Rep. 64; Fisher v. Southern &c. R. Co., 89 Cal. 399; s. c. 26 Pac. Rep. 894; Central R. Co. v. Lippman, 110 Ga. 665; s. c. 36 S. E. Rep. 202; McGee v. Missouri &c. R. Co., 92 Mo. 208: s. c. 4 S. W. Rep. 739; Sprague v. Southern R. Co., 63 U. S. App. 711; s. c. 34 C. C. A. 207; 14 Am. & Eng. Rail. Cas. (N. S.) 356; 92 Fed. Rep. 59.

768

seated, as in the transportation of passengers on trains specially provided for that purpose.7 Passengers on freight trains, even on those trains which have a caboose in which passengers are permitted to ride, must take notice of the character of the train, and must use ordinary care to avoid injury from the natural incidents of that mode. of transportation.769 A person who elects to take passage on the way car of a freight train, the principal business of which is the transportation of freight, instead of waiting for the regular passenger train, can not, it has been reasoned, insist on the same equipment as is usual on regular passenger trains, and is chargeable with notice that different cars and couplings and brakes are used, and that cars must be coupled and uncoupled and shifted at various stations, and that jolts and jerks are incident to the ordinary management of the train.770 In other words, the degree of diligence due from a common carrier to a passenger is extraordinary, no matter what means of conveyance are employed; but what is extraordinary diligence in carriage by a freight train may be different in many respects from that constituting such diligence in case of a passenger train.771

§ 2903. What Risks Passengers Assume on Freight Trains.772. A person who takes passage on a freight train, instead of waiting for at regular passenger train, assumes all risks and inconveniences reasonably and necessarily incident to such method of travel.773 He assumes the risk of an injury which is naturally incident to the character and the operation of the freight train by skillful and competent men.774 This includes the ordinary jarring, jolting and jerking incident to the making up and distributing of such trains, and to their ordinary movements;775 but not extraordinary or violent jolts and jerks which

768 Chicago &c. R. Co. v. Hazzard, 26 Ill. 373; s. c. 1 Biss. (U. S.) 503; Ohio &c. R. Co. v. Dickerson, 59 Ind. 317; Edgerton v. New York &c. R. Co., 35 Barb. (N. Y.) 389; s. c. 39 N. Y. 227; Ohio &c. R. Co. v. Muhling, 30 Ill. 9; Ohio &c. R. Co. v. Selby, 47 Ind. 471; Flinn v. Philadelphia &c. R. Co., 1 Houst. (Del.) 469.

7 Louisville &c. R. Co. v. Bisch, 120 Ind. 549.

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

771 Ball v. Mabry, 91 Ga. 781; s. c. 18 S. E. Rep. 64.

772 This section is cited in §§ 2650, 2906, 2909, 2970.

773 Schilling v. Winona &c. R. Co., 66 Minn. 252; s. c. 68 N. W. Rep. 1083.

774 Guffey v. Hannibal &c. R. Co., 53 Mo. App. 462; Ohio Valley R. Co. v. Watson, 93 Ky. 654; and note to same in 19 L. R. A. 310; Ball v. Mabry, 91 Ga. 781; Illinois &c. R. Co. v. Axley, 47 Ill. App. 307; Mexican &c. R. Co. v. Lauricella (Tex. Civ. App.), 26 S. W. Rep. 301 (no off. rep.).

775 Runnels v. Houston &c. R. Co. (Tex. Civ. App.), 50 S. W. Rep. 172 (no off. rep.); Reber v. Bond, 38 Fed. Rep. 822; Olds v. New York &c. R. Co., 172 Mass. 73; s. c. 5 Am. Neg. Rep. 38; 51 N. E. Rep. 450; Chicago &c. R. Co. v. Arnol, 144 Ill. 261; s. c. 19 L. R. A. 313; Illinois &c. R. Co. v. Axley, 47 Ill. App. 307; Dunn v. Grand Trunk R. Co., 58 Me. 197; s. c. 4 Am. Rep. 267; Lusby v. Atchison &c. R. Co., 41 Fed. Rep. 181; Ohio &c. R. Co. v. Dickerson, 59 Ind.