creasing its speed;ss where a passenger on a freight train sat upon an unguarded projection upon the top of the caboose, with his face turned in an opposite direction from the direction in which he knew that cars were liable to be attached with a concussion and jar:** where a passenger on a dummy line railroad attempted to step from the footboard of an open car to the steps of a closed car, the difference between the footboard and the steps being from two and one-half to three and one-half feet, depending upon the tautness of the couplings, and, while so stepping, fell in consequence of a sudden acceleration of speed of the train, although the train, to all appearances, was about to stop before reaching the crossing of another road, in accordance with a statute;90 where a passenger on a ferryboat, while attempting to make his exit from the boat, crossed diagonally over the vehicle-way of the boat without looking to see how near to him a horse and vehicle were approaching from behind, but judging entirely by the sound, and was run over;"1 where a passenger insisted upon riding upon a flat car on a construction train, having neither end-boards nor side-boards, seated upon a plank placed upon some empty nail kegs, and refused to go into the box car when so directed by the conductor, and, while riding in this position, was injured by a derailment of the train;92 where a passenger on a moving street car unnecessarily attempted to pass along the side-step next to a row of columns which were visible and familiar to him, and was injured by striking a column which stood but fifteen inches from the outside of the step." If the passenger, by reason of placing himself, without necessity, in a dangerous position, receives an injury, he can not cast the liability for his injury upon the carrier, on the ground that the servants of the carrier might, by the exercise of proper care, have discovered his dangerous position, and warned him or prevented him from continuing in it; since the 88 Jackson v. Crilly, 16 Colo. 103; s. c. 26 Pac. Rep. 331. 89 Tuley v. Chicago &c. R. Co., 41 Mo. App. 432. Hill v. Birmingham &c. R. Co., 100 Ala. 447; s. c. 14 South. Rep. 201. 91 Hoboken Ferry Co. v. Feiszt, 58 N. J. L. 198; s. c. 35 Atl. Rep. 299. 92 Berry v. Missouri &c. R. Co., 124 Mo. 223; s. c. 25 S. W. Rep. 229. But see Wagner v. Missouri &c. R. Co., 97 Mo. 512, as stated in the note at the end of the next section. 93 Murphy v. Ninth Ave. R. Co., 6 Misc. (N. Y.) 298; s. c. 58 N. Y. St. Rep. 140; 26 N. Y. Supp. 783; s. c. 93 servants of the carrier have the aff'd 149 N. Y. 609. This case seems to have been badly decided. A passenger, although familiar with the existence of such a row of columns, might not appreciate the exact distance of them from the side steps of the carrier's vehicle, and would naturally assume that the carrier's track was so laid that the vehicle would not go so close to such an obstruction as to knock off passengers standing on the side step.especially in view of the fact that passengers on crowded street cars are seen to ride in that position constantly. right to presume that passengers are conducting themselves with prudence, and are not placing themselves in positions necessarily dangerous, and they are not bound to watch the passengers to protect them from their own folly in this respect."* § 2938. Instances where Contributory Negligence was not Imputed. In the following instances courts have declined to impute contributory negligence to the act of the passenger so as to bar his recovery of damages,-proceeding either on the ground that the act was not negligent or improper, or on the ground that, although negligent or improper, it was irrelevant, collateral and not the proximate cause of the injury which happened to him:-Where a passenger was killed by the breaking of a coupling pin, while passing from one car to another of a railroad train, since he had a right to assume that the couplings and appliances were in a safe and proper condition;95 where a stockman was under the duty, assumed by contract with the carrier, to feed, water and take care of the horses which were being transported upon the carrier's train, and the car stopped at the station and the stockman was upon the car in the act of feeding the horses in the performance of his duty, when it started off, after stopping fifteen or twenty minutes, instead of forty-five, the usual time, and it did not appear that the stockman had time, before the accident, a wreck of the train, to go to another car;96 where a passenger on a railroad train took hold of a brake wheel as he came upon the platform of the car, and the wheel suddenly moved, breaking his arm; where a stockman, while returning, in accordance with custom, to the caboose along the top of a freight car, after examining his Texas &c. R. Co. v. Overall, 82 Tex. 247; s. c. 18 S. W. Rep. 142. See ante, § 2843, et seq. In like manner, contributory negligence barring a recovery of damages has been imputed to a passenger who was run over and killed by a train while waiting at a station for the purpose of taking another train, where he could have seen the train by which he was killed when it was nine hundred feet away: Riester v. New York &c. R. Co., 16 App. Div. (N. Y.) 216; s. c. 44 N. Y. Supp. 739. Where a passenger attempted to cross the tracks intervening between one station platform and the platform against which an approaching train was to draw up. knowing that passengers were required to go over one platform to the other by an overhead bridge, and was struck by an approaching train and killed.no recovery: Riester v. New York &c. R. Co., 16 App. Div. (N. Y.) 216; s. c. 44 N. Y. Supp. 739. But a passenger on board of a railroad train was not deemed guilty of contributory negligence as matter of law, in going on the rear platform of the last car of the train, for the purpose of alighting, while it was standing still, where he was injured by the fall of a lantern negligently attached to the rear of the train: Cramblet v. Chicago &c. R. Co., 82 Ill. App. 542. 95 Costikyan v. Rome &c. R. Co., 58 Hun (N. Y.) 590; s. c. 35 N. Y. St. Rep. 163; s. c. aff'd 128 N. Y. 633. 90 Florida &c. Co. v. Webster, 25 Fla. 394; s. c. 5 South. Rep. 714. 97 Cleveland &c. R. Co. v. McHenry, 47 Ill. App. 301. stock, was struck by a bridge too low to permit a person to pass under it while standing erect upon the train, not having observed it, and having no knowledge of its exact location or height; where a member of a theatrical troupe was injured while riding in the show car, it not appearing that it was not a safe car to ride in, or that he had been forbidden to ride there, but there being some evidence that his employment required him to ride there: where a passenger on entering a railway coach failed to take the first seat, while other passengers were coming in behind him, so as to impute contributory negligence to him in case of an injury resulting from the engine and other cars striking with a violent motion the car in which he was;100 where a passenger, in a place where he has a right to be, is injured in consequence of the railway company failing to give proper warning of an impending danger;101 where a passenger received an injury from the negligence of a trainman in suddenly and violently pulling the bell rope, his attention being diverted so that he was unmindful of the rope, though at one time he had moved away from it;102 where a passenger, about to board a car into which he had been invited, failed to look to see whether other cars were not backing against it;103 where a passenger was injured while endeavoring to board a cable car while in motion, the question of his negligence being for the jury 104 where a passenger, while swinging around from the step of an electric motor car to that of the trailer, received an injury from an electric shock caused by imperfect insulation, there being no rule of the company prohibiting such an act on the part of the passenger.1 It is no part of the province of a passenger on a railroad to 105 98 Chicago &c. R. Co. v. Carpenter, 5 C. C. A. 551; s. c. 56 Fed. Rep. 451. Blake v. Burlington &c. R. Co., 89 Iowa 8; s. c. 21 L. R. A. 559; 56 N. W. Rep. 405. 100 Moore v. Saginaw &c. R. Co., 119 Mich. 613; s. c. 5 Det. L. N. 936; 6 Am. Neg. Rep. 89; 78 N. W. Rep. 666. 101 Sonier v. Boston &c. R. Co., 141 Mass. 10; s. c. 1 N. E. Rep. 493. In this case a passenger was struck by a train on defendant's railroad while he was standing near the edge of the platform of a station with his back to the approaching train, looking at the train which he was going to take. He was struck by a broken step on the side of a car, which projected over the platform. The jury found that defendant negligently omitted to ring the bell on the engine, and that this omission caused the injury. 102 Thompson v. Yazoo &c. R. Co., 47 La. An. 1107; s. c. 17 South. Rep. 503. 103 Moore v. Saginaw &c. R. Co., 119 Mich. 613; s. c. 78 N. W. Rep. 666; 6 Am. Neg. Rep. 89. 104 North Chicago St. R. Co. v. Kaspers, 85 Ill. App. 316; post. § 3565. 105 Burt v. Douglas County Street R. Co., 83 Wis. 229; s. c. 18 L. R. A. 479; 53 N. W. Rep. 447. It has been held that for a passenger riding upon a special train to take an improvised seat on a flat car next to the engine, made by placing a plank across some kegs, and to remain there after being requested by the conductor to go into the box car, the passenger replying that he wishes to ride there to see the country, upon which the conductor says nothing more, is not such negligence. as matter of law, as will prevent re interfere in any way with the management of the train; hence his failure to pull the bell rope and signal an approaching danger will not prevent his recovery for injuries occasioned by the negligence of the employés in charge of the train, although, if he had done so, the accident might have been avoided.106 § 2939. Contributory Negligence no Bar to an Action for an Assault or Ejection from the Train.-On a principle already explained,107 that contributory negligence is no defense to an action to recover damages for a willful, intentional or malicious injury,—such a defense will not be available against an action for damages by a passenger for being unlawfully and forcibly ejected from the vehicle by the carrier's servants.108 § 2940. Passenger Injured Travelling on Sunday.—It is no answer to an action for damages for a death or injury of a passenger that the accident occurred while travelling on Sunday in the carrier's vehicle. It is against public policy to relax, in favor of carriers, the rules of law which hold them to strict liability for injury to passengers. The fact that the passenger may have been engaged at the time in violating a general police regulation of the State, is a question to be litigated between him and the State, and not between him and the carrier who was engaged in violating the same regulation.1 109 covery for the death of the passenger in consequence of the derail ment of the train caused by negligence in its management, although if the passenger had been inside of the box car he might not have been A killed. The court took the view that it was a question for the jury whether an ordinarily prudent man could have reasonably anticipated that, by taking that position, he was exposing himself to the injury received; and also whether the conductor consented to his remaining there; and, if so, whether the train was managed with the care and caution commensurate with the passenger's risk in that situation; and whether his injury was or was not the direct and immediate result of failure to discharge that duty: Wagner v. Missouri &c. R. Co., 97 Mo. 412; s. c. 3 L. R. A. 156; 10 S. W. Rep. 486. But see Berry v. Missouri &c. R. Co., 124 Mo. 223; s. c. 25 S. W. Rep. 229, as stated in the preceding section. 106 Grand Rapids &c. R. Co. v. Ellison, 117 Ind. 234; s. c. 20 N. E. Rep. 135. 107 Vol. I, § 206. 108 Louisville &c. R. Co. v. Goben, 15 Ind. App. 123; s. c. 42 N. E. Rep. 1116; rehearing denied in 43 N. E. Rep. 890. 109 Opsahl v. Judd, 30 Minn. 126; s. c. 14 N. W. Rep. 575. See also Carroll v. Staten Island R. Co., 58 N. Y. 126, 136. VOL. 3 THOMP. NEG.-26 401 ARTICLE II. RIDING IN AN SECTION 2942. General proposition. IMPROPER PLACE, POSITION OR MANNER. 2943. Riding upon the engine. 2945. Leaving seat and going to a 2947. Riding on platform or steps 2949. What will excuse the passen- 2950. Further of such excuses or circumstances of justifica tion. 2951. Further of this subject. 2953. Going to the platform prepara- 2954. Riding on the platform of a street car. 2955. Riding on the platform of a street car when there is no room inside. 2956. When standing on street car 2968. Acts of this kind to which contributory negligence was not imputed. 2969. Passing from one car to an- 2970. Riding standing up. 2973. Cases holding that this is not 2974. Other such cases. platform contributory negli- 2977. Injuries caused by the open gence. 2957. Riding on steps or footboard of street car. ing and shutting of doors. 2978. Passenger's hand crushed in the jamb of a door. 2958. Riding in express or baggage 2979. Cases of this kind where con car. 2959. Exception where the duties of the passenger require him to ride in the baggage or express car. 2960. Exception where the rule against so riding is habitually disregarded. 2961. Exception where he is so permitted to ride by the con. ductor or baggage master. tributory negligence not im- 2980. Cases of this kind where the |