should be added, however, that where there are other circumstances which, justly or unjustly, incline the scales in the prisoner's favor, the fact that he is suffering from illness `produced by his confinement, may operate to turn the scales in his favor.5

RIGHTS OF STREET CAR PLATFORM PASSENGERS.

§ 1. Preliminary.

§ 2. Foundation of Governing Principles.

§ 3. Passenger Must Exercise Care.

§ 4. Less Care Required than on Train Drawn by Locomotive.

§ 5. When not Negligence.

§ 6. Illustrations,

(a.) Riding on Platform from Necessity - No Room Inside.

(b.) No Vacant Seats, but Ample Standing Room. § 7. When Negligence.

§ 8. Rules Against Riding on Platform.

§ 1. Preliminary.-Whether it is such contributory negligence for a passenger to ride upon the platform of a street car, as will preclude a recovery, in case of injury, is the of this article to consider. purpose

§ 2. Foundation of the Governing Principles.-All the well considered cases lay down the rule, without exception, that a plaintiff can not recover for damages he may sustain, when his own want of ordinary care, contributed directly towards it, however great or extreme may have been the negligence on the part of the plaintiff.1 This is a familiar doctrine of the law of negligence, and founded upon the plainest principles of reason and justice. That every individual is held to the consequences of his own acts, is but another statement of the doctrine.

In every situation, individuals are required to exercise that care and diligence which men of prudence usually exert to avoid injury. But what is such ordinary care is a varying circumstance, and always measured, by the risk to be avoided. It is not absolute, but

5 Rex v. Ailesbury, Comb, 421; s. C., 1 Salk. 103; Holt, 84; United States v. Jones, 3 Wash. C. C. 224. It is feared that there were such circumstances in Semme's Case, 11 Leigh (Va.) 665, though they do not appear in the report.

1 See note of Mr. Redfield to McClurg's case in 2 Am. Ry. Cases, 552; s. c. 56 Pa. St. 294.

depends upon the existence of the accompanying facts of each particular case.2

§ 3. Passenger Must Exercise Care.-Therefore, in determining the question whether a plaintiff acted negligently in riding upon a street-car platform, the test always is: Under the circumstances, would an ordinarily prudent person have done likewise? It is never required that the passenger shall exercise exextraordinary vigilance and be constantly on the alert in anticipation of injury. He has a right to assume that the carrier will be reasonably diligent and careful in discharging his duty to the public. The contrary rule would render this mode of travel extremely hazardous only to the exceedingly vigilant.

§ 4. Less Care Required than on Train Drawn by Locomotive.-The degree of care to be exercised in riding upon a railway train drawn by locomotive power, is much greater to constitute it ordinary" than that required in riding upon street-railroad cars, drawn by horse power. The reason for the distinction is obvious. The highest speed of a horse car is comparatively very moderate and easily controlled. It can be stopped in a moment by means of the voice, reins and brake. It is a matter of common knowledge that transportation by steam is attended, even under the strictest vigilance, with much greater danger. A person standing upon a car platform, when the train is in motion, without a justifying necessity, places himself in an unprotected and exposed situation, and almost precludes the idea that due care can be exercised under such circumstances.5

§ 5. When not Negligence.-It is a well established principle that the mere fact of riding upon a street car platform is not conclusive evidence of negligence. The courts have

2 See Hon. S.D. Thompson's Article on Contributory Negligence, 5 Southern Law Review, (N.S.) 843; North. Cent. R. Co. v. Price, 29 Md. 420; Lynch v. Nurdin, 1 Q. B. 36.

3 Thompson on Carriers of Passengers. 444, § 6. 4 Meesel v. Lynn & Boston R. Co. 8 Allen, (Mass.) 234.

5 Gavett v. Manchester & Lawrence R. Co., 16 Gray, (Mass.) 501.

6 Nolan v. Brooklyn City R. Co., 87 N. Y. 63; Germantown Pass. R. Co. v. Walling, 97 Pa. St. 55; s. c. 2 Am. & Eng. R. Co. cases, 20 with note; Maguire v. Middlesex R. Co., 115 Mass. 239; Burns v. Bellefountaine R. Co, of St. Louis, 50 Mo. 13; 13th & 15th St. Pass. R. Co. v. Boudrou, 92 Pa. St. (11 Norris) 475; s. c. 37 Am. Rep. 707. with note. 711.

been uniform in promulgating this rule. The public have always regarded the platform as a safe place. Street-car companies, also, view it in the same light. They give the public to understand that it is a safe place, and habitually stop their cars for passengers, and invite them to get on as long as there is standing room, either in the car, upon the platform, or upon the steps. Therefore, for a court to declare that the mere fact of riding upon the platform is such contributory negligence as will defeat an action, in case of injury, would be to announce a rule without sound reason to support it.

§ 6. Illustration.-(a). Riding upon Platform from Necessity.-No room Inside the Car. The cases afford many illustrations of this principle. Thus, riding upon the platform from necessity, when the car is full, and the passenger exercises due care while in such position, has never been held to be an act of negligence, especially if the conductor receives the passenger's fare. And it was held in a well-considered case, that standing upon the steps leading up to the platform, when it is the only available place for the passenger, and while in this situation, he takes every precaution to avoid injury, is not such negligence on his part as will justify the court in taking the case from the jury."

Hadencamp v. The Second Avenue R.Co.,1 Sweeney, (N. Y. Super. Ct.) 490; Sheridan v. The Brooklyn & N. R. L., 36 N. Y. 39; Clark v. Eighth Ave. R. Co. 36 N. Y. 135; s. c. 32 Barb. 657.

8 Augusta & Summerville R. Cò. v. Renz, 55 Ga. 126; Germantown Passenger R. Co. v. Walling, 97 Pa. St. 55. In Ginna v. The Second Avenue R. Co., 67 N. Y. 596, the court held that when a street railroad car is so crowded that one taking passage can not enter it without great and unreasonable discomfort to himself and to prior occupants of the car, and the conductor consents to and does accept from him the usual fare, without insisting upon his finding a place within the car, and while riding upon the platform, he is thrown off and injured by the negligence of the company, the fact that he was standing upon the platform does not of itself constitute contributory negligence, but is a question for the jury. The same doctrine has been held to apply where plaintiff was injured while standing on the steps of a sleigh, caused by collision with another sleigh, the sleigh being full, and it was the custom of defendant to allow persons to ride in that manner and collect the usual fare from them. Spooner v. Brooklyn City R. Co., 54 N. Y. 230.

* In Huelsenkamp, 2 Citizens R. Co., 34 Mo. 45 (1863) s. c. 37 Mo 537 (1866); the car was entirely filled on the inside and on the platforms, and on the steps leading down from the platforms. Deceased was standing on a step, and holding on to the iron railing of the window of the car, having his body leaning out laterally some distance from the car, and while in that

car.

10

(b). No Vacant Seats in the Car, but Standing Room.-Passengers are not to be deemed guilty of contributory negligence for the mere standing on the platform, when there are no vacant seats within the Street car companies have the right to carry passengers there, and whether it is such negligence as will preclude a recovery, in case of injury, is always a question for the jury." And where a passenger is struck by the pole of the following car, while riding on the rear platform, his positon is a condition, and not a cause of the injury.12

position, in passing another car which was stationary upon a "turn-out," the cars came so near together, that the body of deceased was crushed between them so that he died almost immediately. The accident occurred after dark. Deceased was told by a passenger that he had better get in farther or get off the car. The cars were not so close together but that the moving car could have passed without striking the standing car. Wagner, J., in speaking for the court, observed: "The position in which deceased placed himself was perhaps unsafe, but it was not prohibited; and the evidence further shows, that owing to the crowded state of the cars, there was no other place he could take. Had there been any objection to carrying him in that manner, it would have been competent for the company or its employees to have put him off the car; but not having done so, they were bound to carry him with skill, prudence and care. There is nothing to show that he failed to exercise ordinary prudence and care. He might, in all probability have avoided the catastrophe by being on the alert and exercising extraordinary vigilance, but such was not required of him."

10 Maguire v. Middlesex R. Co., 115 Mass. 239; Willis v. Long Island R. Co., 34 N. Y. 670. In Nolan v. Brooklyn City & N. R. Co., 87 N. Y. 63, plaintiff took passage upon one of defendants street cars. There were no vacant seats inside, but, as he was smoking, he rode upon the front platform, the evidence being that it was the custom of the line to permit no smoking elsewhere, but to permit it by passengers riding on the front platform. While thus riding, he was injured by being thrown off through the negligence of the driver. In affirming the judgment of the court below in favor of plaintiff, it was held, that the evidence was sufficient to justify the submission to the jury, of the question of contributory negligence of the plaintiff; and that under the proof of that case it was NOT negligence per se to ride upon the platform.

11 In Burns v. The Bellefontaine R. Co. of St. Louis, 50 Mo. 139 (1872), plaintiff was on front platform and there was room inside. This was held not to be negligence per se. A street R. Co. has the right to carry passengers on the platforms, and if a passenger be injured while standing there, without objection by the company's agent, whether the injury was with his contributory negligence is for the jury to decide. S. c. reported in full in Thomp. on Car. of Pass. p. 441. But see, v. Anderson R. Co., 2 Mackey, 137; s. C., 15 Rep. 330, referred to in n. 17.

12 Thirteenth & Fifteenth St. Pass. R. v. Boudron, 92 Pa. St. (11 Norris) 475; s. c. 37 Am. Rep. 707, (with note p. 710-713).

§ 7. When Negligence.-But riding upon a street car platform may become negligence and defeat the action for the injury, yet accurately speaking, the contributory negligence is not wholly due to the plaintiff's presence upon the platform, but rather to the exposed and dangerous position, in which he, without a justifying necessity, places himself. Thus, if a passenger sits on the steps of the front platform, contrary to the rules of the road and the warning of the conductor, without making an effort to secure himself by holding on to the railing, he is guilty of such contributory negligence as will justify a nonsuit. 13 So a passenger sitting on the driving bar of the front platform by invitation of the company's servant,14 or standing on the extreme edge of the rear platform without holding on, or on the front platform, leaning his back against the car window, with one foot on the iron hand-loop of the dash-rail,16 is guilty of contributory negligence.

15

And it has been held that remaining on the platform-the seats being all taken-when

13 Wills v. Lynn & Boston R. Co., 129 Mass. 351 (1880); Solomon v. Cent. etc. R. Co., 1 Sweeney, (N. Y. Superior Ct. Rept.) 298.

14 In Downey v. Hendrie, 46 Mich. 498 (1881), plaintiff was sitting on the driving bar of front platform of street car by invitation of driver, from which position he fell and was injured. There was abundance of unoccupied seating-room inside the car. Here it was urged that plaintiff was invited to ride on the front platform by the servant of the company, and that consequently defendant Was estopped from setting up the occupation of plaintiff's position as contributory negligence. The court conceded that to be a rule of law; "but the rule is plainly not one of universal application." "Regard must be had," said the court, "to the passenger's capacity to look out for himself; to the opportunity there may be to get a safer position; to the distinctness, certainty and extent or degree of the peril, and so on." "May the ordinary passenger, with his eyes open and with abundant accomodations before him which are safe, accept an invitation from the carrier to ride on the cow-catcher, and then, if injury arises from it, be allowed to set up the invitation as a legal answer to the charge of contributory negligence? To conclude that he might, would be to permit a person of full capacity to exempt himself from the duty and responsibility appertaining to him as a moral being, and in substance to stultify himself in order to cast a liability on another." "Judges can not denude themselves of the knowledge of the incidents of railway traveling which is common to us all." Siner v. Great W. R. Co., L. R. 4 Ex. 123; Dublin, Wicklow & Wexford R. Co. v. Slattery, 3 App. Cas. 1155; 24 Eng. 713; Lake S. & M. S. R. Co. v. Miller, 25 Mich. 274.

15 Ward v. Central Park R. Co., 33 N. Y. 392; s. c., 11 Abb. Prac. Rep. (N. S.) 411; s. c. 42 How. Prac. 289. 16 Heckrott v. The Buffalo St. R. Co., Superior Ct. of Buffalo, N. Y., Nov. 1883, 13 Am. Law Record, 295.

Supreme Court of Michigan, Jan. 7, 1885.

A city is not liable under the statute for damages caused by the running away of a horse, frightened by a large bowlder, which has been taken from the bed of a street, and left for four or five days on one side thereof, until it could be removed by a private party, to whom it had been given for building purposes. The statutory remedy is confined to cases where the want of repair is the immediate cause of the injury; and allowing things which are no part of a highway to stand in it temporarily, can not be treated as putting out of repair, which must relate to the way itself, and not to things disconnected from it.

Error to Shiawassee.

A. M. McBride, for plaintiff and appellant; William A. Fraser, (Hugh McCurdy, of counsel,) for defendant.

CAMPBELL, J., delivered the opinion of the

court:

Plaintiff sued defendant for damage to a horse

17 In Andrews v. R. Co., 2 Mackey's Rep. (S. C. Dist. Columbia) 137; s. c., 15 Reporter, 330, the plaintiff was about to enter the car, from the rear, to put his fare in the box, it being a "bob-tail;" he had one foot on the platform and the other in the door in the car, when on turning a corner, the car "produced a jar," and he was thrown off and seriously injured. He had sufficient time to pass on the inside of the car. The seats were all taken, but there was ample standing room. This was held negligence per se.

18 Willis v. Lynn & Boston R. Co., 129 Mass. 351 (1880); Baltimore Cv. Pass. Ry. v. Wilkinson, 30 Md. 224.

*S. c. 21 N. W. Rep. 817.

and buggy, relying on the statute which provides a recovery of damages for injuries arising by reason of streets being out of repair. Judgment went for defendant. The accident occurred while plaintiff's son was driving through the streets of Corunna during the day-time, and is claimed to have been the result of his horse becoming frightened by seeing a large stone standing in the highway, between the track usually traveled in the middle of it and the gutter at one side. He did not pass by it on this occasion, and it is insisted that while passing along the road in the next block, and beyond a street-crossing, the horse saw the stone, which was beyond the other side of the crossing, and turned up the side street and upset the buggy. There was a good deal of testimony on the disputed question whether the horse was really frightened at all, and whether the mischief did not come from an entirely different cause. There was also testimony bearing upon the fitness of the driver and his management in driving, as well as upon the other questions which were supposed to bear on corporate fault. The stone in question was a bowlder, of some four feet in diameter, which had theretofore lain in the road-bed, just coming to the surface, but not making any difficulty in passage. It was thought best, however, to remove it from its place, and make the road-bed of the ordinary material. Accordingly, the stone was dug up and moved away from the track towards the side of the road, and left standing ready for removal, held in place by placing smaller stones under it. The city highway officials were about to carry it off, when a person who desired it for building purposes asked for it, and was given the privilege of taking and appropriating it. Before he removed it this accident happened. The testimony does not fix definitely the precise time during which the stone lay there after it was dug up, but varies from two or three days to four or five. There is no testimony that the road was out of repair, or that any of the damage claimed arose from defects in the track used by plaintiff's buggy.

The court below left the question to the jury as to the cause of the accident and the failure in duty of the corporation, to remove the stone within a reasonable time, as well as the further question whether the stone in its place was calculated to frighten horses, and whether the driver was at fault himself. The jury gave a general verdict, and the grounds of it do not appear. It is claimed by defendant, in the outset, that the statutory remedy is confined to cases where the want of repair is the immediate cause of the injury, as where there are obstructions or defects in a roadway or bridge, where the vehicle in passing over it encounters the mischief complained of. And it is also claimed that allowing things which are no part of a highway, to stand in it temporarily, can not be treated as putting out of repair, which must relate to the way itself, and not to things disconnected from it. This construction of the

e

statute is the natural and correct one. The statut does not seem to be aimed at indirect and remote mischiefs, but to those which follow from a direct injury caused by the want of repair. A similar question has come up in Massachusetts several times as to the law relating to injuries from things which did not obstruct passage, and it was held that where the damage was consequential, not on the effect of a want of repair, but upon fright caused to a horse which ran away and damaged the vehicle or persons he was drawing, or other analogous cases, it did not come within the rule, and the municipality was not liable. Cook v. Montague, 115 Mass. 571; Bemis v. Arlington, 114 Mass. 507; Cook v. Charlestown, 98 Mass. 80; Kingsbury v. Dedham, 13 Allen, 186; Keith v. Easton, 2 Allen, 532.

The road itself was not out of repair. It was in good order and passable. If the stone had anything to do with the action of the horse and damage to the buggy, it was by frightening the animal, and not by hurting or impeding him. But if it is admitted, and the court below allowed the jury so to assume, that a city is liable for leaving or allowing in its streets that which is dangerous by reason of its tendency to frighten passing teams, the question arises how far this record presents such a case. It will not do to apply any far-fetched and unreasonable rule in such cases. It was held in the case of Macomber v. Nichols, 34 Mich. 312, that a steamengine which, according to every-day experience, is always a cause of terror to horses unused to meeting it in a highway, was nevertheless not, in law or in fact, an unlawful article to propel or draw there. And a similar rule was applied in Gilbert v. Flint & P. M. R. Co., 51 Mich. 488, s. c. 16 N. W. Rep. 868, to box cars.

It is customary in all towns to allow ditches to be dug, and building materials of all kinds and colors to be piled up and kept for considerable periods in the body of the street. In many, if not in most, places, the right to do this can only be had by license from the corporation, and it cannot be claimed that such a license can be granted to do a wrong or create a nuisance. Such stones as that described are often used for building purpose, and left in the street like other building materials, and sometimes broken up for use, or sawed for use. It does not seen reasonable to hold that such things can be allowed to await the convenience of a person who wishes to use them near by, and yet not await removal somewhere else. If this stone had been hauled to the place it occupied, in order to be used for building purposes, and left there for a considerable time, no one wodld think of regarding it as an actionable grievance. The use of streets for such purposes is too common to justify the owners of horses to assume it will not be allowed, and they should be prepared to guard against their animals' freaks and fears of such ordinary appearances. The stone, as is not disputed, was lawfully put there in the first place

in the course of street repairs. If it was the duty of the city to see that it was not left there indefinitely, it was equally its right to sell or give it away, and having done so, it could take no steps to interfere, unless, at the worst, the purchaser or donee delayed so long as to make it unreasonable to wait any longer for him. It could not be responsible for any delay which was not unreasonable.

As this case went to the jury and as it was argued here, the plaintiff cannot make out error unless it was illegal absolutely to leave this stone where it was left any longer than was necessary to remove it. The court was called on to say that it was a nuisance in itself. This was refused, but it was left to the jury to determine whether it was or not, and also to determine whether it was allowed to remain an unreasonable time. It is difficult to see how the court could have gone further without imposing duties and liabilities on municipalities which would be ruinous. These are the only questions which it is important to consider. The judgment should to be affirmed.

(The other justices concurred.)

NOTE. It will be perceived that the principal case follows the doctrine which obtains in Massachusetts, upon the point in judgment. In that State, a statute requiring towns to keep their ways safe and convenient for travellers, does not extend so far as to oblige the overseers of highways to remove objects from the limits of the highway, which have a tendency to frighten horses, but which are not otherwise defects therein, as a large vehicle used as a daguerrean saloon;2 or a dead horse; or a pile of gravel;4 or a bright stone; or some large stones partly concealed by high grass. But where the horse took fright at a red watering trough, shied, and ran the carriage into a hole in the highway, inflicting damage, the case was ordered to stand for trial.' But the prevailing doctrine is contrary to that which obtains in Massachusetts, and to that which the Supreme Court of Michigan has declared in the principal case. That doctrine is, that if the town, city, or other public corporation charged by law with the care of highways, permit objects to remain therein, which, from their nature have a tendency to frighten horses of ordinary gentleness and docility, and the horse of a traveller, himself in the exercise of due care, takes fright at such an object and runs, and, notwithstanding due efforts to restrain him on the part of his driver, damages ensue, the corporation must pay such damages.8 Such an object is a nuisance which the town or city is bound to remove; but, in order to charge it with liability for

1 Keith v. Easton, 2 Allen, 552.

2 Ibid.

3 Cook v. Charleston, 13 Allen, 190, note; 98 Mass. 80;

Contra, Chicago v. Hoy, 75 Ill. 305.

4 Kingsbury v. Dedham, 13 Allen, 186.

5 Cook v. Montague, 115 Mass. 571.

6 Bemis v. Arlington, 114 Mass. 507.

7 Cushing v. Bedford, (Sup. Jud. Ct. Mass. 1878), 6 Re-. porter, 718.

8 Young v. New Haven, 39 Conn. 435; Ayer v. Norwich, 39 Conn. 376; Dimock v. Suffield, 30 Conn. 129; Morse v. Richmond, 41 Vt. 435; Foshay v. Glen Haven, 25 Wis. 288; Kelly v. Fond du Lac, 31 Wis. 179; Card v. El'sworth, 65 Me. 547; Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 356; Chicago v. Hoy, 75 Ill. 530; Merrill v. Hampden, 26 Me. 234.

neglecting to do so, the character of the object should be such as to make the danger obvious and the duty of the corporation clear.9 Whether such an object, in any particular case, amounts to such a nuisance, is a question for the jury to determine, upon a consideration of the character of the object, its situation, the amount of travel on the highway, and all other circumstances.10 Moreover, the driver, if his horse is "not entirely gentle, but somewhat timid and inclined to shy," is bound to use more than ordinary caution in passing such an object, in order to entitle himself to redress against the town for the injuries received." If, after the taking fright of the horse at such an object, the driver is wanting in prudent management, damages can not be recovered.12 But the driver is held to no more care than a person of ordinary prudence and discretion would exercise, if placed in similar circumstances, and exposed to a like danger, making due allowance for the alarm into which he is thrown by the happening of the accident.13 This doctrine has been applied where the object at which the horse took fright, consisted of bales of hay piled on the margin of the highway;14 a pigsty projecting into the highway, occupied by five swine; 15 a hollow, burnt and blackened log, lying by the side of the travelled part of the highway;16 a "pitch-hole" in the highway, through which the traveller attempted to drive; 17 a large rock n the travelled path;18 a pile of lumber;19 or a dead horse negligently left lying in the street by the city authorities.20 But a wagon turned up edgewise outside the travelled track is not such an object.21 "An illegal use of the highway by men, animals, vehicles, engines, or any other object, while movable and actually being moved by human will and direction, and neither fixed to, nor resting on, nor remaining in one position, nor confined within any particular space, within the limits of the highway, will not render the town liable for damages occasioned by horses taking fright, at the appearances presented by, or the sounds and scents emitted from, such objects. It would be quite difficult for towns, whatever powers they possessed, or however diligent they might be, to guard against annoyances of so shifting and temporary a nature." The "obstruction" contemplated by the statute of Maine is, in general, one from or by reason of mere matter.23 Thus, a traveller's horse took fright at a large number of boys sliding down hill on the highway with their hand-sleds. He could not recover damages against the town, for this was not within the statute.24 A countryman brought a large evergreen tree to town for sale. It stood upright in his wagon. He halted

9 Dimock v. Suffield, 30 Conn. 129; Ayer v. Norwich, 39 Conn. 376; Card v. Ellsworth, 65 Me. 547; Nichols v. Athens, 66 Me. 402.

10 Ayer v. Norwich, 39 Conn. 376: Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 356.

11 Dimock v. Suffield, 30 Conn. 129.

12 Brooks v. Petersham, 16 Gray, 181. 13 Brooks v. Petersham, 16 Gray, 181.

14 Morse v. Richmond, 41 Vt. 435.

15 Bartlett v. Hookset, 48 N. H. 18.

16 Foshaw v. Glen Haven, 25 Wis. 288.

17 Kelly v. Fond du Lac, 31 Wis. 179.

18 Card v. Ellsworth, 65 Me. 547.

19 Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 356.

20 Chicago v. Hoy, 75 Ill. 530. Contra, under the Massachusetts rule, Cook v. Charlestown, 13 Allen, 190, note; 98 Mass. 80.

21 Nichols v. Athens, 66 Me. 402, the question having been referred to the court as one both of fact and of law.

22 Smith, J., in Bartlett v. Hookset, 48 N. H. 18. 28 Davis v. Bangor, 42 Me. 522.

24 Ray v. Manchester, 46 N. H. 59.