34

consequently the blameless consequence of the fault of the carrier. The real rule proceeds upon the theory that the misconduct of the carrier has produced the erroneous action of the passenger, and that it does not therefore lie in the mouth of the carrier to defend an action for damages on the ground of such erroneous action, thereby taking advantage of his own wrong. In other words, it does not lie in his mouth to say to the injured passenger: "You shall not have damages, because you did not act with reasonable care," if the misconduct of the carrier paralyzed the nerves or destroyed the volition of the passenger, so that he became incapable of acting with that care which persons under other circumstances employ 35 This principle does not, of course, relieve the passenger from the burden of proving that the apparent peril which caused him to take the erroneous course of conduct, was the result of the negligence of the carrier; for if the carrier was guilty of no negligence, and if the fright of the passenger was due to some other cause, then obviously, the carrier can not be held liable: as in other cases, the foundation of any right of recovery is necessarily predicated on his negligence.36 Such proof of negligence in the carrier is not afforded by the fact that a peculiar signal given by the locomotive caused or aggravated the alarm of the passenger, where the signal was a proper one."

37

§ 2928. Illustrations of this Principle.-If a passenger in a stagecoach, by reason of a sudden and imminent peril, arising from an accident for which the proprietors of the coach are liable, is placed in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution under the circumstances, and he leaps therefrom, and thereby breaks a limb, the proprietors are answerable to him in damages, though he would have avoided injury had he remained in his seat.38 So, where a passenger upon a railway train is,

24 Jones v. Boyce, 1 Stark. 493; s. c. Thomp. Carr. Pass. 246; Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 193; Buel v. New York &c. R. Co., 31 N. Y. 314, 318; Frink v. Potter, 17 Ill. 406; Ingalls v. Bills, 9 Metc. (Mass.) 1; s. c. Thomp. Carr. Pass. 112; Union &c. R. Co. v. Kelley, 4 Colo. App. 325; s. c. 35 Pac. Rep. 923; St. Louis &c. R. Co. v. Murray, 55 Ark. 248; s. c. 18 S. W. Rep. 50; Iron Railroad Co. v. Mowery, 36 Ohio St. 418; Pittsburgh &c. R. Co. v. Martin, 82 Ind. 476; Ladd v. Foster, 31 Fed. Rep. 827; Cuyler v. Decker, 20 Hun (N. Y.) 173; Houston &c. R. Co. v. Norris (Tex. Civ. App.). 41 S. W. Rep. 708 (no off. rep.). See, as to this rule, Vol. I, §§ 80, 81, 164,

175, 188, 195, 197, 255, 1272; Vol. II, § 2328.

35

"If," said Lord Ellenborough, "I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences:" Jones V. Boyce. 1 Stark. 493, 495; s. c. Thomp. Carr. Pass. 246, 248.

S6 See Vol. I, §§ 194, 196, where the principle is stated.

37 Chicago &c. R. Co. v. Felton, 125 Ill. 458; s. c. 15 West. Rep. 41: 17 N. E. Rep. 765.

39 Ingalls v. Bills, 9 Metc. (Mass.) 1: s. c. Thomp. Carr. Pass. 112; Jones v. Boyce, 1 Stark. 493; s. c. Thomp. Carr. Pass. 246.

in consequence of the negligent and unskillful operation of its train by the company, placed in a situation so perilous as to render it seemingly prudent for him to leap from the train, as where he sees another train rapidly approaching from the rear on the same track, and he so leaps and is injured, he is entitled to recover damages, although he would not have been hurt if he had remained on the train.39 So, where an express messenger, who, as already seen,10 occupies toward the railway company the relation of a passenger,upon first discovering that a section of the train to which his car was attached and which was left standing on a long down-grade, had got under way and was proceeding down the grade, and, suddenly realizing his peril, went on top of the car to see if he could not set the brake and stop it, instead of jumping off, which he could then have done, it was held that this was not such contributory negli gence as to prevent a recovery for his death from a derailment of the train upon reaching the bottom of the grade." So, although it is generally regarded as negligence for a passenger to ride on the platform of a steam railway car, yet where, in case of a collision between the train on which the passenger is riding and another train of the defendant, the passenger leaves his seat and goes to the front platform, acting upon a reasonable belief that, in so doing, he will better avoid the danger, and, while there, receives the injury complained of, he is not precluded from recovering damages on the ground of contributory negligence, although it appears that if he had remained in his seat he would not have been injured.42

§ 2929. Cases to which this Rule does not Apply.--On the other hand, if the erroneous act of the passenger resulted from a rash apprehension of danger which did not exist, it may be set up against him as contributory negligence. 43 So, it has been held that a street car company is not liable for an injury to a passenger in jumping from the car under an apprehension of danger, where there was no real danger, and the apparent danger was caused by the negligence of the gateman at a railway crossing, employed by the steam railway company, and his confusion and contradictory warnings and signals, without any negligence of the driver of the street car. So, the mere fact of a passenger's jumping from a train through fear and

39 St. Louis &c. R. Co. v. Murray, 55 Ark. 248; s. c. 18 S. W. Rep. 50. 40 Ante, § 2651.

"Union &c. R. Co. v. Kelley, 4 Colo. App. 325; s. c. 35 Pac. Rep. 923.

42 Railroad Co. v. Mowery, 36 Ohio St. 418.

44

43 Jones v. Boyce, 1 Stark. 493; Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 193; Buel v. New York &c. R. Co., 31 N. Y. 314, 318; Frink v. Potter. 17 Ill. 406.

"Kleiber v. People's R. Co., 107 Mo. 240; s. c. 14 L. R. A. 613; 17 S. W. Rep. 946.

apprehension of danger caused by the approach, from the rear, of another train on the same track, will not authorize a recovery for an injury sustained by him, unless the company was guilty of some act of negligence sufficient to create in the mind of a reasonable and prudent person, under the circumstances of the case, such fear and apprehension. It is scarcely necessary to add, in conclusion, that, although there may be a real or apparent danger such as excuses the erroneous act of the passenger, yet if such danger is not traceable to the negligence of the carrier, there can be no recovery.

45

46

§ 2930. How Far Passenger Entitled to Presume that Carrier has Done his Duty."-The passenger is clearly entitled to presume, in the absence of evidence to the contrary, that the carrier has done his duty, and that he has exercised due care to the end of making his premises, his roadway and his signals reasonably safe, for the purposes intended. 48 He is therefore under no obligation to be on the outlook to avoid dangers or defects in the carrier's appliances, and is not imputable with negligence, unless he fails to use ordinary care after acquiring knowledge of a defect or of a peril which the negli gence of the carrier has thrown upon him. Nor will negligence be imputed to him because he acts on the presumption that the servants of the carrier will exercise that degree of care which persons of ordinary prudence are accustomed to exercise, in the like employment and under like circumstances.50 As hereafter pointed out, the passenger is not imputable with negligence because he acts on the presumption, in the absence of evidence or warnings to the contrary, that the premises of the carrier and his means of access to and egress from his vehicles are in a reasonably safe condition.52

45 St. Louis &c. R. Co. v. Murray, 55 Ark. 248; s. c. 18 S. W. Rep. 50,

46 Chicago &c. R. Co. v. Felton, 125 Ill. 458; s. c. 15 West. Rep. 41; 17 N. E. Rep. 765; Vol. I. §§ 194. 196.

47 This section is cited in §§ 2565, 2987, 3057, 3579, 3600.

48 As to this right to presume that the other party will act rightly, see Vol. I, §§ 190, 191; Vol. II, §§ 1448, 1612, 1613.

49 Ohio &c. R. Co. v. Stansberry, 132 Ind. 533; s. c. 32 N. E. Rep. 218. 50 Franklin v. Southern &c. R. Co., 85 Cal. 63.

Post. §§ 3057, 3087. 52 It was held in the Supreme Court of New York that a woman who, for years, had frequently crossed on a particular ferry, and had always found the adjustable

49

31

floating bridge and the deck- of the boat at about the same level, was justified in assuming. on approaching the boat in the usual way in the nighttime, that it was in its usually safe condition, and was hence not guilty of negligence in not anticipating that the deck would be a foot and a half lower than the bridge: Race v. Union Ferry Company, 46 N. Y. St. Rep. 325; s. c. 19 N. Y. Supp. 675. But, the evidence not being clear that the difference in height between the deck and the bridge was a foot and a half. but it being based upon the mere judgment or assumption of the complainant that it must have been that distance, from the severity of her fall, and some discrepancy being unavoidable, and it being the duty

§ 2931. Following Directions of Carrier's Servants.5-As already pointed out, the passenger will naturally assume, and may justly assume, that the ordinary servants of the carrier, appointed to manage his means of transportation, are under the duty of warning and advising passengers, to the end of protecting them from danger; and they may reasonably act on the presumption that the servants of the carrier are more familiar with the sources of danger than a passenger can be; and consequently they are justified in acting upon the warnings, advice or suggestions of such servants, unless the danger of doing so is obvious and glaring,—not merely to the senses of an ordinary passenger, but to the senses of a passenger of the age, experience, and state of health of the passenger in any particular case.54 What is here said is true, for stronger reasons, where the passenger receives the injury in consequence of acting upon imperative orders given by a servant of the carrier of a grade entitled to give such orders, such as the master of a vessel or the conductor of a railway train. Thus, it has been held that a passenger is not imputable with negligence because he assumes that the place assigned him on the vehicle of the carrier is a safe place, unless to act upon this assumption would involve an inexcusable failure to exercise his own senses in regard to his own safety.56 So, where a passenger, in obe

55

of the passenger to be on the lookout, the Court of Appeals, reversing the decision of the Supreme Court, held that the plaintiff could not recover: Race v. Union Ferry Company, 138 N. Y. 644. In view of the high degree of care which the law justly puts upon carriers of passengers, the reversing decision seems to be based on flimsy grounds, and to be an offense to public justice. In another case, it was held that an intending passenger was not, as matter of law, guilty of contributory negligence, precluding recovery for his death from being struck by a train, in acting upon the assumption that the company would not depart from its uniform and long-established custom to run the train on the north track, and in failing to look and listen before crossing the south track, where the approach of the train had been announced, and the deceased hurriedly attempted to cross the track in order to avoid the cold, followed by other passengers who narrowly escaped being struck: Beecher v. Long Island R. Co., 35 App. Div.

(N. Y.) 292; s. c. 12 Am. & Eng. Rail. Cas. (N. S.) 295; 55 N. Y. Supp. 23. 53 This section is cited in §§ 2852, 2879, 3027.

54 Vol. II, §§ 1613, 1614, 1615.

Indianapolis &c. R. Co. v. Watson, 114 Ind. 20; s. c. 12 West. Rep. 289; 14 N. E. Rep. 721, and authorities there cited.

56 City R. Co. v. Lee, 50 N. J. L. 435; s. c. 14 Atl. Rep. 883; 7 Am. St. Rep. 798; 13 Cent. L. J. 273. In an action for damages for an injury to the plaintiff, a woman, received in alighting from the train of a railroad company, where she had been promised the assistance of the trainmen,-it was held that the court might properly instruct the jury that she might rely on the directions of the conductor, though addressed to passengers generally, to get off the train, "provided she took

dience to the instructions of the conductor of a train, attempted to board a car, which was standing detached from the engine, by going between the rails, and getting aboard over the end of the platform, at a place where the bank at the side of the track was so steep as to prevent him from getting aboard on the side of the platform, and, while so attempting to board the car, was struck and pushed along the track in consequence of the engine backing against the car, and was so injured, it was held that he was not precluded from recovering damages by reason of his contributory negligence. On the other hand, it is obviously not the duty of the servants of a railway carrier of passengers to superintend the movements of every passenger, without reference to their ability or inability to take care of themselves; nor would passengers submit to such superintendence. It fairly follows from this that where a passenger, being inside the car, is injured in consequence of a collision while the cars are stopping at a station for dinner, he is not guilty of contributory negligence by reason of the fact that he has assumed his place in his car before being directed to do so by the trainmen.58 Another court has held that the fact that a passenger on a horse car was intoxicated when he received an injury, although not alone sufficient to prevent his maintaining an action, will prevent a recovery if his intoxication contributed to the injury in any degree.59 So, it has been held that a railroad company is not liable for the death of a passenger caused by his falling off the rear steps of the platform while the train was in motion, because of his intoxicated condition, where its agents operating the train did not know of his position, and the station agent, who saw him sitting on the steps, did not know, and had no opportunity to learn, that he was in a state of unconsciousness from intoxication.60

ligence for a stout man to follow the instructions of a person who, with the acquiescence of the conductor, was authorized by the several shippers whose stock was on the train, to direct each stockman to look after any animal, regardless of who might be its owner: Missouri &c. R. Co. v. Jahn (Tex. Civ. App.), 43 S. W. Rep. 575 (no off. rep.).

Irish v. Northern &c. R. Co., 4 Wash. 48; s. c. 29 Pac. Rep. 845.

58 Lakin v. Oregon &c. R. Co., 15 Or. 220; s. c. 15 Pac. Rep. 641. It has been held that the failure of a conductor to compel a young man twenty years of age who was somewhat under the influence of liquor,

to enter a car after he had declined to do so and persisted in riding on the platform, will not render the carrier liable for his injuries when thrown from the car, if the conductor did not think he was sufficiently drunk to be unable to care for himself, although the young man's father asked the conductor to get him to come in: Fisher v. West Virginia &c. R. Co., 42 W. Va. 183; s. c. 33 L. R. A. 69; 4 Am. & Eng. Rail. Cas. (N. S.) 86; 24 S. E. Rep. 570.

59 Holland v. West End Street R. Co., 155 Mass. 387; s. c. 29 N. E. Rep. 622.

60 St. Louis &c. R. Co. v. Carr, 47 Ill. App. 353.