Wallace, &c. v. Smith. "The actual state of law in the United States is as follows: It has often been said that a condition against alienation confined to a limited period is good, but such remarks have been obiter dicta, without any reasoning or citation of authorities," referring to Cowell v. Springs Co., 100 U. S., 55, 57, 25 L. Ed., 547; Jackson v. Schutz, 18 Johns., 174, 184, 9 Am. Dec., 195; Bank v. Davis, 21 Pick., 42, 32 Am. Dec., 241; Simonds V. Simonds, 3 Metc. (Mass.), 558, 562; Andrews v. Spurlin, 35 Ind., 262, 268; Jauretche v. Proctor, 48 Pa., 466, 472; Sanford v. Lackland, 2 Dill., 6, 10, Fed. Cas. No. 12,312. "So, if confined to a reasonable, limited period." Gray v. Blanchard, 8 Pick., 284, 289. See 9 Am. Law Reg. (N. S.), 461, 463. The case most generally cited in favor of the validity of a limited restraint is MeWilliams v. Nisly 2 Serg. & R., 507, 513, 7 Am. Dec., 654, in which is to be found a dictum of Tilghman, C. J., that a imited restraint is good, supported by a reference to Large's case, 2 Leon., 82, 3 Leon., 182. The chief justice says: "For what length of time this general restriction may endure, it is not necessary to decide, nor shall I attempt to trace the boundary. Suffice it to say, and I think it may be said with great safety, that it may last during the life of any person in existence at the time of making the deed." In section 53 it is said: "The cases in which such conditions have been sustained are (1) Stewart v. Brady, 3 Bush, 623. See Stewart v. Barrow, 7 Bush, 368. Here, in an opinion without any citation of cases, a condition attached to a devise in fee, that the devisee should not sell until he was thirty-five years of age, was held good." Several authorities are also cited in support of the validity of such restriction. The learned author further says: "The weight of authority, and especially of reasoned authority, is against the validity of restraints upon alienation, however Davis v. Paducah Ry. & Light Co. limited in time," and makes some quotations from the courts of last resort of other States in support of the text. It will, however, be seen that this court has expressly decided that such limitations as made in the case at bar are valid, and that the vendee or legatee can not pass title to a purchaser until the expiration of the limit. We therefore adhere to the decisions of this court in the cases herein mentioned. It may also be said that it is a universal rule of law that a party can not hold under and in opposition to a will. After a careful consideration of this case, we are constrained to hold that the circuit court erred in the judg ment appealed from. The judgment is therefore reversed, and cause remanded for proceedings consistent herewith. CASE 38-ACTION TO RECOVER DAMAGES FOR PERSONAL INJURIES.- Davis v. Paducah Railway & Light Co. APPEAL FROM M'CRACKEN CIRCUIT COURT. JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS. REVERSED. CARRIERS-STREET RAILROADS-CARE DUE PASSENGERS-CONTRIBUTORY Held: 1. The duty of a street railroad company to a passenger to protect her from injuries from its appliances is not fulfilled by recent inspection of its cars, or by an inspection by a competent employe, but the law requires of it "the utmost care and skill which prudent men are accustomed to use under similar circumstances." 2. It was error to instruct the jury that it was the duty of plaintiff, when going upon defendant's cars, "to exercise due care and caution, use her eyes, and act with reasonable care and judg ment for her own safety, more especially if she found the car unusually overcrowded with passengers," but the court should instead 113 267 e127 442 Davis v. Paducah Ry. & Light Co. have instructed the jury that it was incumbent on plaintiff while on the car "to exercise such care and caution as might be reasonably expected of a person of ordinary prudence situated as she was." 3. If the negligence of defendant produced a flash of fire, followed by smoke in the car, causing a panic among the passengers, whereby plaintiff was injured, that negligence was the proximate cause of the injury, provided the conduct of the passengers was such as might reasonably be expected under similar circumstances, considering the crowded condition of the car and the fact that it was moved by electricity. 4. A passenger makes out a prima facie case against the carrier when he shows an injury resulting from a defect in any of those things the carrier is bound to supply. 5. It is safer to so frame instructions as to indicate the burden of proof without expressly referring to it, and therefore the court should have instructed the jury that, if plaintiff's injury was due to any defect in the car or cars on which she was riding, or the machinery or appliances connected therewith, and she did not, by her own want of ordinary care, contribute to the injury, they should find for her the damages she thereby sustained, unless they believed from the evidence defendant had exercised the utmost care and skill which prudent men are accustomed to use under similar circumstances to ascertain any defects in the car and appliances and secure their safety. 6. When specific facts are alleged constituting contributory negligence, the instructions should be confined to those facts. HENDRICK & MILLER, ATTORNEYS FOR APPELLANT. POINTS DISCUSSED AND AUTHORITIES. 1. Good faith is no part of the definition of negligence. 2. Contributory negligence, to be available as a defense, must be alleged in the plea. L. & N. R. R. Co. v. Schuster, 10th L. R., 65; and though plaintiff contribute to his injury, it will not bar a recovery unless he is in fault in so doing. South Cov. & Cin. St. Ry. v. Ware, 84 Ky., 267; also that standing upon a crowded street car when there is no room to sit, is not contributory negligence. C. & O. Ry. Co. v. Lang's Admr., 19 Ky. Law Rep., page 65, 100 Ky., 221. 3. Although plaintiff may have contributed to his own injury, if it be done through sudden fright, or because confronted with unexpected danger caused by the negligence of defendant, defendant is still liable. 84 Ky., 267. 4. An electric street railway company owes it to its passen Davis v. Paducah Ry. & Light Co. gers to keep the current of electricity moving its cars under perfect control, and so to insulate and guard its cables, wires, electrical machinery, etc, as to afford passengers on its cars perfect protection therefrom, and to use the utmost care to keep them so guarded and insulated. Thomas' Admr. v. Maysville Gas Co., 21 Ky. Law Rep., 1690; McLaughlin v. Louisville Electric Light Co., 100 Ky., 173; Overall v. Same, 20 Ky. Law Rep., 759; Schweitzer's Admr. v. Citizens' General Electric Co., 21 Ky. Law Rep., 608; Macon v. Paducah Ry. & Light Co., 23 Ky. Law Rep., 46. 5. Where a passenger is hurt because of defect in the machinery, or hidden defect in any way, especially because of some defect in electrical appliances, the burden is upon the common carrier to show affirmatively that all appliances, machinery, etc., were in good condition, and that those in charge of its cars and machinery were free from negligence. Central Passenger Ry. Co. Kuhn., 86 Ky., 578; Cooley on Torts, 663; 2d Hilliard on Torts, 587; L. & N. R. R. Co., v Ritter, 85 Ky., 367; Watson's Admr. v. Ohio Valley R. R. Co., 93 Ky., 654. OPINION OF THE COURT BY JUDGE HOBSON-REVERSING. Appellant, Rachel Davis, was a passenger on one of the cars of the appellee, the Paducah Railway & Light Company. The car was very much crowded, and she, being unable to get a seat inside of the car, was on the front platform. As we understand the proof, she was on the front end of the front car, on which was the motor, and behind it were two other cars, called "trailers," which were pulled by it. The cars were coming into the city from the fair ground, and when they first started were moved slowly, to give the conductor time to take up the fares. When the motorman applied the full power of the current, according to the proof for appellant, the car began to slow up, and there was a flash of light. The motorman hallooed out loud enough to be heard three squares away: "Throw that trolley off back there. Don't anybody get off this car. There is no danger. Don't anybody get off." He hallooed this several times. The passengers in the car cried, "Fire! The car is on fire!" Davis v. Paducah Ry. & Light Co. and began to jump out through the windows, and to rush out pellmell at the doors. The appellant was holding on to the car. The heat flashed up, and burned her hand, so that she had to let go. When she did this, the crowd surging by her knocked or pushed her off the car and trampled upon her, inflicting very serious and painful injuries. She was badly bruised, externally and internally, so that blood passed from the bowels, bladder, and mouth, and her leg was seriously, if not permanently, injured. The proof for the appellee only conflicts with that of appellant as to the amount of the flash of flame which caused the stampede among the passengers. On the facts the court instructed the jury as follows: "(1) The court instructs the jury that on the occasion the plaintiff boarded the defendant's street car named in her petition, it was the duty of the defendant company to have provided safe cars in a safe condition in which for passengers to ride in so far as human foresight and judgment by recent inspection could enable the defendant company to know, or in good faith to believe, the cars in good condition by being inspected by a competent employe. The court further instructs the jury that on the occasion aforesaid it became the legal duty of the plaintiff, when going upon said cars, to exercise due care and caution, use her eyes, and act with reasonable care and judgment for her own safety, more especially if she found the car unusually overcrowded with passengers. (2) The court further instructs the jury that if you shall believe from the evidence the cars upon which plaintiff entered on the occasion named in instruction No. 1 were in an unsafe condition, and that said want of safety in the cars was known to the defendant or its employes, or that the same should have been discovered by the inspection of a competent person; and if you shall further believe from the evidence that by reason |