stopped and started with motions more or less sudden, there is no difficulty in attributing contributory negligence to a passenger who elects to ride standing on his feet, when he can just as well take a seat. This is especially true with respect to passengers upon freight trains, where there is peculiar danger of being thrown down by the jolting, jarring and lurching which are ordinarily incident to the movements of such trains, and especially to making up and distributing such trains in railway yards.255 When, therefore, a female passenger, after getting on an elevated street railway train, instead of sitting down, remained on her feet, leisurely looking around, until the train started, throwing her down,-it was held that her contributory negligence would bar a recovery of damages.256 But a passenger on a street car who had told the conductor the place at which he wished to get off, was not deemed, as matter of law, imputable with contributory negligence, because he stood up in order to call the attention of the conductor to the designated place, upon the failure of the car to stop there.257 The courteous conduct of a passenger in a crowded railroad car in surrendering his seat to two old and infirm women can not be imputed to him as contributory negligence if, while so standing, he receives through the negligence of the company an injury which he would not have received if he had retained his seat.258

§ 2971. Sitting by an Open Window.-An unreported decision of the Court of Appeals of Kentucky is authority for two propositions: 1. That a passenger on a railway train is not guilty of contributory negligence in sitting by an open window which is out of repair and can not be closed, although knowing that sparks and cin

255 Ante, § 2903.

tory negligence, thus invading the

256 De Soucey v. Manhattan R. Co., province of the jury: Wallace v. 39 N. Y. St. Rep. 79.

257 Ripley v. Second Ave. St. R. Co., 8 Misc. (N. Y.) 449; s. c. 59 N. Y. St. Rep. 37; 28 N. Y. Supp. 683.

25 Trumbull v. Erickson, 97 Fed. Rep. 891. Where it was shown that the plaintiff fell and broke his thigh bone while standing on the floor of the passenger car in which he was riding, his fall being caused by heavy jolts and jars, it was held that the trial court could not properly instruct the jury that his injury was the result of a mere accident, and that he was guilty of contribu

Western &c. R. Co., 101 N. C. 454; s. c. 8 S. E. Rep. 166. Circumstances under which, the train having struck a freight car through negligence of defendant's servants while the plaintiff was standing up in the aisle of a sleeping car eight or ten feet from the smoking compartment, train moving at its usual speed.it was error to submit the question of contributory negligence to the jury, since the facts did not raise that question: Gulf &c. R. Co. v. Bell, 93 Tex. 632; s. c. 57 S. W. Rep.

939.

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ders are flying into it.259 2. But that if, with this knowledge, he does sit by the open window, knowing that there are vacant seats at places where the windows are not open, he can not recover damages from the company for an injury received from a flying cinder, on the mere ground that the window was defective and could not be lowered. 200

261

§ 2972. Riding with Arm, or Head, or Body out of Window.— It is frequently stated as a proposition of law that if the passenger allows any portion of his body to extend beyond the base of an open car window while the train is in motion, such conduct is negligence per se, which disentitles him to recover for any injuries received in consequence of coming in contact with any obstruction outside, or for any injury which would not have been sustained but for such contributory negligence.262 The following, taken from the language of Thompson, C. J.,263 in giving the judgment of the Supreme Court of Pennsylvania, is a fair example of the reasoning of the courts in support of this rule: "A passenger, on entering a railroad car, is to be presumed to know the use of a seat, and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use. The seat he may occupy in any way most comfortable to himself. The window he has a right to enjoy, but not to occupy. Its use is for the benefit of all,-not for

25 O'Donnell v. Louisville &c. R. Co., 19 Ky. L. Rep. 1005; s. c. 42 S. W. Rep. 846 (not to be rep.).

260 O'Donnell v. Louisville &c. R. Co., supra.

261 Todd v. Old Colony &c. R. Co., 3 Allen (Mass.) 18; s. c. 7 Allen (Mass.) 207; Pittsburgh &c. R. Co. v. Andrews, 39 Md. 329; Indianapolis &c. R. Co. v. Rutherford, 29 Ind. 82; Morel v. Mississippi Ins. Co., 4 Bush (Ky.) 535; Pittsburgh &c. R. Co. v. McClurg, 56 Pa: St. 294; Louisville &c. R. Co. v. Sickings. 5 Bush (Ky.) 1; Holbrook v. Utica &c. R. Co., 12 N. Y. 236; Richmond &c. R. Co. v. Scott, 88 Va. 958; s. c. 16 L. R. A. 91; 16 Va. L. J. 62; 14 S. E. Rep. 763, and note 16 L. R. A. 91; Carrico v. West Virginia &c. R. Co., 35 W. Va. 389; s. c. 11 Rail. & Corp. L. J. 64; 14 S. E. Rep. 12; Favre v. Louisville &c. R. Co., 91 Ky. 541; s. c. 16 S. W. Rep. 370; 13 Ky. L. Rep. 116; Dale v. Delaware &c. R. Co., 73

N. Y. 468; Voorhees v. Kings County Elevated R. Co., 3 Misc. (N. Y.) 18; s. c. 50 N. Y. St. Rep. 569; 21 N. Y. Supp. 775; Georgia &c. R. Co. v. Underwood, 90 Ala. 49; Shelton v. Louisville &c. R. Co., 19 Ky. L. Rep. 215; s. c. 39 S. W. Rep. 842 (no off. rep.); Cummings v. Worcester St. R. Co., 166 Mass. 220; s. c. 44 N. E Rep. 126: Clarke v. Louisville &c. R. Co., 101 Ky. 34; s. c. 18 Ky. L Rep. 1082; 36 L. R. A. 123; 8 Am. & Eng. Rail. Cas. (N. S.) 355; 39 S. W. Rep. 840; Miller v. St. Louis &c. R. Co., 5 Mo. App. 471; Dun v. Seaboard &c. R. Co., 78 Va. 645; s. c. 49 Am. Rep. 388 (passenger's arm out of window and struck by woodpile near the track).

262 Georgia &c. R. Co. v. Underwood, 90 Ala. 49; s. c. 8 Rail. & Corp. L. J. 434; 8 South. Rep. 116.

263 Pittsburgh &c. R. Co. v. MeClurg, 56 Pa. St. 294.

the comfort alone of him who has by accident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority; and if he allow it to protrude out, and is injured, is this due care on his part? He was not put there by the carrier, nor invited to go there; nor misled in regard to the fact that it was not a part of his seat, nor that its purposes were not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and liable to be broken without his ability to know whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the position voluntarily or thoughtlessly taken, in a window, by contact with outside obstacles or forces, it can not be otherwise characterized than as negligence, and so to be pronounced by the court."264 Under this theory it was held that a railway company was not liable for an injury to a passenger's hand caused by striking against a bridge, where the passenger put it out of the car window, although it projected but three inches beyond the outer wall of the car. Another court held that a passenger who protruded his elbow through a window of the car as it was passing through a tunnel, so that it struck against timbers near the sides of the car, was guilty of negligence as matter of law, although he did it inadvertently, and did not extend it more than one and a half inches beyond the outer surface of the side of the car.266 These outrageous decisions are tantamount to a license to railroad companies to construct their bridges and viaducts so as to leave a space of but three inches between them and the outer walls of their cars, notwithstanding the well-known habits of passengers of putting their elbows out to rest, or even of putting their heads out for the purposes of observation. A doctrine so brutal is not deserving of the least respect.267 Whatever view may be taken of this question, there

204 The court in this case expressly overruled the earlier case of New Jersey &c. R. Co. v. Kennard, 21 Pa. St. 203, establishing the contrary principle. In Laing v. Colder, 8 Pa. St. 479, it was held that if the passenger's extended arm was broken by coming in contact with a bridge, the carrier would not be responsible for the injury. if he gave timely notice of the danger, which the plaintiff might have avoided.

265 Richmond &c. R. Co. v. Scott, 88 Va. 958: s. c. 16 L. R. A. 91; 16 Va. L. J. 362; 14 S. E. Rep. 763.

20 Clarke v. Louisville &c. R. Co.,

265

101 Ky. 34; s. c. 18 Ky. L. Rep. 1082; 36 L. R. A. 123; 8 Am. & Eng. Rail. Cas. (N. S.) 355; 2 Am. Neg. Rep. 360; 39 S. W. Rep. 840.

257 Another court has held that where a passenger on a railway car, seated with his elbow on the sill of an open window, had his arm broken by contact with a truss-bridge of wood, the inside sheathing-boards of which had become warped and loose, the fact that a few months afterwards the bridge was replaced by a wider one of iron, whose trusses did not come up as high as the car window-sills, was not admissible

seems to be entire propriety in a holding to the effect that no presumption of negligence on the part of a railway company arises from the fact that it maintains a bridge with a post so near its track that passengers protruding their heads or limbs from the windows of the car will come in contact with it, where there can be no injury without an exposure of the head or limb to the extent of from ten to fourteen inches beyond the outside wall of the car.268

§ 2973. Case Holding that this is not Contributory Negligence.— The foregoing decisions exhibit an obtuse brutality which is disgraceful to a civilized jurisprudence. They amount to a license to railway carriers of passengers to erect the trusses of their bridges and the walls of their viaducts, and to leave cars standing upon their side tracks, so near to the outer walls of their passenger coaches when passing on their main tracks, as to be brought in contact therewith by the usual oscillations, although by so doing the arms and even the heads of the passengers who are not more than ordinarily cautious are taken off. Such a doctrine is a gross negation of the principle elsewhere discussed,269 that a common carrier of passengers is bound to bestow upon the safety of his means of transportation the highest degree of care and skill of which human foresight is capable. Nay, it is a gross negation of the proposition that he is bound to bestow upon those appliances reasonable or ordinary care. It is gratifying to be able to say that some of the American courts have refused to place themselves in this disgraceful category. The Supreme Court of Wisconsin, speaking through Cole, J., have made it clear to a just mind that the question of the contributory negligence of the passenger in such a situation is at most a question of fact for a jury.210 He said: "It is probably the habit of every person, while riding in the cars, to rest the arm upon the base of the window. If the

in evidence on the question whether the company was guilty of negligence in allowing the old bridge to remain: Dale v. Delaware &c. R. Co., 73 N. Y. 468.

held that the fact of his death under such circumstances did not raise a presumption of negligence, such as shifted the burden of proof upon the railroad company, although it appeared that occasionally he might have to expose his head beyond the outside line of the car in the discharge of his duties: Weaver v. Baltimore &c. R. Co., supra.

208 Weaver v. Baltimore &c. R. Co., 3 App. (D. C.) 436; s. c. 22 Wash. L. Rep. 393. The case was that of the killing of a 'mail clerk. He was found dead in the car under circumstances which clearly indicated that his head had been thrust out so far as to come in contact with Spencer v. Milwaukee &c. R. the bridge post, while he was in the Co., 17 Wis. 487, 494. act of catching a mail bag. It was

29 Ante, § 2722.

270

window is open, it is likely to extend slightly outside. This, we suppose, is a common habit. There is always more or less space between the outside of the car and any structure erected by the side of the track, and must necessarily be so to accommodate the motion of the car. Passengers know this, and regulate their conduct accordingly. They do not suppose that the agents and managers of the road suffer obstacles to be so placed as barely to miss the car while passing. And it seems to us almost absurd to hold that in every case, and under all circumstances, if the party injured had his arm the smallest fraction of an inch beyond the outside surface, he was wanting in ordinary care and prudence. Of course, a case might be supposed where carelessness would be clearly apparent from the circumstances. If a passenger should ride with his body half out of the car, or with his arms or his feet so protruded that they would inevitably expose him to danger and collision, we should have no hesitation in saying that he was utterly reckless." The foregoing remarks present a reasonable view of this question. Passengers can not be expected to sit bolt upright for a succession of days or hours, nor do they. The frames of men are not of cast iron, and no rule of law should be predicated upon the contrary supposition. It is perhaps not too strong a statement that no person ever travelled upon a railway train without at some time resting his arm upon the window-sill at least, if not permitting it to protrude slightly. Conduct which is universal is necessarily that of persons reasonably prudent. As pointed out by the learned judge in the above quotation, it is easy to distinguish between conduct in this particular which is so imprudent as to leave no room for speculation as to negligence, and that which may properly be submitted to the consideration of the jury.

§ 2974. Other Such Cases.-The Supreme Court of Illinois held, under the rule of comparative negligence formerly prevailing in that State, that where a passenger's arm slightly projected outside the window, and was broken in passing a freight train, the negligence of such person was slight, compared with the negligence of the railroad company in permitting its freight cars to stand so near the track of its passenger train, and a recovery might be had for the injury sustained.271 The Supreme Court of Missouri have taken nearly the same view.272 A Federal Circuit Court has held that a

271 Chicago &c. R. Co. v. Pondrom, 51 Ill. 333.

272 Winters v. Hannibal &c. R. Co., 39 Mo. 468; Barton v. St. Louis &c. R. Co., 52 Mo. 253.