female passenger upon an electric street car is not guilty of negligence per se, which will prevent her recovery for injuries from her arm coming in contact with a trolley pole set too near the track, in resting her elbow upon the sill of the car window, from which it was made to protrude by a sudden motion of the car.273 Other courts have held that it is not negligence per se for a passenger to expose his hand or arm outside the window of a street car.274 It is scarcely necessary to add that the fact that the passenger is riding with his elbow out of the window does not bar a recovery for a hurt that comes to him through the negligence of the carrier, unless his riding in this exposed position was the proximate cause of his injury, as where a passenger, while so riding, was struck-not on his elbow, but on his hand and wrist, and injured by a stick of wood coming from the outside through the open window.275 It seems that the fact of the passenger so riding will not bar a recovery against a third person for an injury visited upon the passenger by some external object while riding in that position.276 One court has qualified the severe rule which imputes contributory negligence as matter of law, to the act of a person who rides with his elbow outside the car window, by saying that the railway company may be liable unless its servants notice his dangerous position and neglect to warn him of the danger.277 Another court has held that in the case of a passenger on a street car injured by thrusting his elbow out of the window, the

273 Schneider v. New Orleans &c. R. Co., 54 Fed. Rep. 466; s. c. 8 C. C. A. 571.

274 Miller v. St. Louis &c. R. Co., 5 Mo. App. 471; s. c. 6 Cent. L. J. 335 (horse railroad); Seigel V. Eisen, 41 Cal. 109; Francis v. New York Steam Co., 3 Daly (N. Y.) 510.

275 Moakler v. Willamette &c. R. Co., 18 Or. 189; s. c. 6 L. R. A. 656; 7 Rail. & Corp. L. J. 214; 22 Pac. Rep. 948. This case discloses this peculiar state of facts: A passenger had his elbow out of the car window, but his hand and wrist were inside. In other words, he was resting his arm on the sill of the car window, in the customary way. A stick of wood fell from a pile near the track, through the window at which the passenger sat. It caught him in the mouth of his coat sleeve, and jambed his arm backward and injured it. It was

held that his negligence presented a question for the jury, and that be was consequently not guilty of negligence as matter of law: Moakler v. Willamette &c. R. Co., 18 Or. 189; s. c. 6 L. R. A. 656.

270 Thus, a steam pipe company dug a trench in a city street and constructed across it a temporary bridge with a guard rail supported by upright planks, one of which fell over, breaking the arm of the plaintiff, who was riding in a street car and had his arm out of the window. It was held, in his action against the steam pipe company, that the plaintiff's conduct was not negligence per se, and that the questions of negligence and contributory negligence were for the jury: Francis v. New York Steam Co., 13 Daly (N. Y.) 510.

277 Dun v. Seaboard &c. R. Co., 78 Va. 645; s. c. 49 Am. Rep. 388.

conductor is under no duty to warn him of the danger of a train approaching on a parallel track.278

§ 2975. Whether the Railroad Company should Erect Barricades or Guards to Prevent People from Putting their Hands and Arms out of the Window. If a railroad company will construct its tracks so near to standing columns or poles, woodpiles which it has placed by the side of its track, on the sides of bridges or tunnels, as to endanger the life or limb of a passenger, who thrusts even his elbow beyond the external wall of its car, then it would seem that the rule of law which puts upon a carrier of passengers the obligation of exercising the highest degree of practicable care and foresight, to the end of protecting his passenger from danger while in, transit, should require him to take the simple precaution of inserting wire screens or metallic rods in the windows of his coaches, so as to defend passengers against injuries of this kind. Accordingly, it has been held that whether reasonable diligence on the part of a street railway company in the protection of its passengers, requires it to provide barricades or guards to prevent passengers from putting their hands or arms out of the windows of its cars, is a question for a jury.279

§ 2976. Riding with Hand or Arm on Window Sill.-One court has conceded this much in favor of humanity as against railroad. corporations, that, while it is negligence per se for a passenger in a railroad coach moving rapidly, to allow his arm to project from the window, yet it is not negligence to rest it on the window sill without projecting.20 Another court has held that a railway carrier of passengers is liable to a passenger who, with his arm resting on the inside of a window sill, is injured by its coming in contact with a loose door on a passing freight car, without other evidence of negligence

Orleans &c. R. Co. v. Schneider, supra. The instruction was wrong. as against the passenger, but it was not erroneous as against the railroad company, which was the appellant. The railroad company was bound not merely to take the precautions measured by what is called reasonable diligence, but to exercise the highest degree of practicable care and foresight: Ante. § 2722.

280 Carrico v. West Virginia &c. R. Co., 35 W. Va. 389; s. c. 11 Rail. & Corp. L. J. 64; 14 S. E. Rep. 12.

on its part, in the absence of an explanation of it by the carrier.21 The doctrine of these cases is confirmed by a decision of the Supreme Court of the United States, holding that it is culpable negligence for the managers of a railroad to leave a car on the side track, so near the main track as to cause a passenger train to strike it in passing, and that a passenger whose arm is on the sill of the car window, but not protruding beyond the external line of the car, is not guilty of contributory negligence, such as to preclude him from recovering damages for an injury sustained by his arm being thrown out by a collision with the car so negligently left standing, and injured in such a collision.282 Another court takes the view that a passenger upon a railroad car is not guilty of negligence in placing his hand on the sill of a window which he finds open, which will prevent his recovery for injuries from the window falling upon it, because of defective fastenings and the jolting of the car. 283

§ 2977. Injuries Caused by the Opening and Shutting of Doors.— In an English case28+ the passenger got up from his seat and put his hand on the bar which crossed the window of the door of the carriage, for the purpose of looking out to see the signal lights and to show them to a fellow-passenger. Leaning forward a little upon the door, it flew open, and he fell out and was injured. There was no further evidence as to the construction of the door and its fastenings. The jury having found for the plaintiff, leave was reserved to enter a nonsuit, on the ground that there was no evidence of the defendants' liability. It was held by the Court of Exchequer Chamber (affirming the decision of the court below) that the verdict ought to stand. Said Cockburn, J.: "The passenger did nothing more than that which came within the scope of his enjoyment while travelling, without committing any imprudence. In passing through a beautiful country, he certainly is at liberty to stand up and look at the view; not in a negligent, but in the ordinary manner of people travelling

281 Breen v. New York &c. R. Co., 109 N. Y. 297; s. c. 11 Cent. Rep. 891; 16 N. E. Rep. 60.

282 Farlow v. Kelly, 108 U. S. 288. 283 Gulf &c. R. Co. v. Killebrew (Tex.), 20 S. W. Rep. 182; s. c. reversed on other grounds in 20 S. W. Rep. 1005. But in the opinion of the City Court of Brooklyn, New York, a railroad company is not liable for an injury to the hand of a passenger resting upon the sill of

the window in the car, by the falling of the window, occasioned by its having been raised by another passenger to a height insufficient to cause the catch to hold: Voorhees v. Kings County Elev. R. Co., 3 Misc. (N. Y.) 18; s. c. 50 N. Y. St. Rep. 569; 21 N. Y. Supp. 775.

284 Gee v. Metropolitan R. Co., L. R. 8 Q. B. 161; s. c. 42 L. J. (Q. B.) 105; 21 Week. Rep. 584; 28 L. T (N. S.) 582.

for pleasure.' But a passenger is not justified in leaving his seat and incurring a known and ascertained danger for the purpose of obviating a slight inconvenience. Thus, in another English case,285 the door of the compartment of the carriage in which the plaintiff was riding flew open three times, and each time the plaintiff succeeded in shutting it without accident. The weather was pleasant. There was room in the carriage for the plaintiff to sit away from the door, and the train would have stopped at a station in three minutes. The door opened a fourth time, and, in endeavoring to shut it again, the plaintiff fell out and was hurt. It was held that he had no right to run the risk of attempting to shut the door; and although there was evidence of the defendants' negligence from the defective condition of the lock, yet the injury suffered was not the necessary or natural result of the company's negligence, and they were not liable for the injury.286 So, an American court has held that a street railway passenger, who, upon entering a "transfer" car used as a waiting-room for passengers who are to be transferred from one line to another, carelessly takes a position close to or against a plainly discernible door which is liable to be opened at any time, is guilty of contributory negligence, and can not recover for injuries sustained by falling out of the door of the car because the door is suddenly opened, although the employé who opens it is also guilty of negligence in not observing the position of the passenger, and warning her out of it, and waiting for her to move.287

285 Adams v. Lancashire &c. R. Co., L. R. 4 C. P. 739.

280 In Gee v. Metropolitan R. Co., supra, the principle declared in this case was approved, but its application to the facts therein denied, by Mr. Justice Keating. In reading this case it is essential to bear in mind the difference in construction between railway coaches in this country and the passenger carriages in England. The doors in the latter are on the side of the carriage, opening outwards, and are regularly locked and unlocked by the guard at the beginning and end of the journey.

287 Prothero v. Citizens' Street R. Co., 134 Ind. 431; s. c. 33 N. E. Rep. 765. Where a passenger who sat near the front door of a crowded and dark car, while it was passing through a long tunnel, attempted to shut the door, in order to keep out the smoke and cinders, there being no servant of the defendant at hand

to do it, and in doing so was injured by thrusting his hand through the portion of the door which was made of glass, it was held (one judge dissenting) that the railway company was liable: Western Maryland R. Co. v. Stanley, 61 Md. 266; s. c. 48 Am. Rep. 96. Where the porter of a sleeping car suddenly opened a door of the car, which was of peculiar construction and mechanism, catching and crushing the fingers of a passenger, who was steadying himself after having washed his face and hands at a place in the car provided for that purpose, the question of the negligence of the railway company hauling the sleeping car and of the company furnishing the sleeping car was a question of fact for the jury: Sturdivant v. Ft. Worth &c. R. Co. (Tex. Civ. App.), 27 S. W. Rep. 170 (no off. rep.). As to the liability of railway companies hauling sleeping cars for injuries to passengers through the negligence of

§ 2978. Passenger's Hand Crushed in the Jamb of a Door.Several cases affirm the proposition that a passenger who voluntarily places his hand in the jamb of the door of a railway carriage, is guilty of contributory negligence, which will prevent a recovery of damages, in case his hand is crushed by the closing of the door by a servant of the carrier, who does not observe the dangerous position of the passenger.288 So, in an English case,289 a passenger, after getting into a carriage of a train on the defendants' railway, left his thumb for the space of half a minute in the door-jamb; the guard, after crying out to the passengers to take their places, shut the doors of the carriages, and, not seeing the plaintiff's thumb, crushed it in so doing. The evidence demonstrated that the doors were shut in the ordinary manner, and the accident was attributable only to the plaintiff's negligence.290

2979. Cases of this Kind where Contributory Negligence not Imputed. The case last cited was distinguished from another case,291 where the plaintiff, in getting into the railway carriage, having a

the sleeping car company or its servants, see post, § 3613. It has been held erroneous to instruct a jury in a case of this kind that it was negligence for the porter to close the door of the car without giving warning in advance: Galveston &c. R. Co. v. Davidson, 61 Tex. 204. And certainly this is sound in a jurisdiction where the independence of juries is strictly upheld, because the question at most would be one of fact for a jury. In the same case, an instruction which assumed that the finger of the passenger crushed when he was trying to enter the car, was held erroneous, there being some evidence that he was standing on the platform with his hand in a negligent and dangerous position: Galveston &c. R. Co. v. Davidson, supra. The instruction was bad in that it assumed a fact which was for the decision of the jury.

was

25% Richardson v. Metropolitan R. Co., 37 L. J. (C. P.) 300; Murphy v. Atlanta &c. R. Co., 89 Ga. 832; s. c. 15 S. E. Rep. 774; Texas &c. R. Co. v. Overall, 82 Tex. 247; s. c. 18 S. W. Rep. 142: Guthman v. Manhattan R. Co., 53 N. Y. Supp. 139.

289 Richardson v. Metropolitan &c. R. Co., 37 L. J. (C. P.) 300.

200 On the other hand, and in conformity with a principle already

considered (Vol. I, § 238), if a servant of the railway company sees the passenger with his hand in the jamb of the door, but nevertheless closes the door, injuring the passenger, it will be a case of the prior negligence, of the passenger and the subsequent negligence of the carrier. and there may be a recovery of damages. Thus, where the passenger was injured by the guard allowing a door to slam on her fingers, where he had been holding it open for her, the court held that he should have retained his hold on the door until she had passed safely out, that his act of letting go the door was the proximate cause of her injury, and that the company was liable: Caldwell v. Manhattan R. Co., 57 Hun (N. Y.) 452. So, where a passenger opened the door of the car and stood in the doorway, waiting for the guard to open the gate to the car platform, and as he did so he gave the signal to start, and thus caused the door to swing upon her hand, injuring her finger, it was held that the negligent act of the guard in starting the train was the proximate cause of the injury, and that the company was liable: Baker v. Manhattan R. Co., 118 N. Y. 533.

291 Fordham v. London &c. R. Co., L. R. 3 C. P. 368; s. c. 37 L. J. (C. P.) 176; L. R. 4 C. P. 619.