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ous cases cited in note 2 on said page. Second. I will of the legislature should prevail over any It is for the legislature, in the first instance, mere doubt of the court." to decide whether the object for which a tax In the light of the principles already stated, is to be used or raised is a public purpose, but is the legislation under which the bonds in its determination of the question is not con- question were voted illegal, on the ground that clusive. Ibid. Third. To justify a court in it authorized the imposing of burdens upon declaring a tax invalid on the ground that it the public, by way of taxation, in aid of a was not imposed for the benefit of the public, private enterprise, and not in furtherance of an the absence of a public interest in the purpose object which is public in its character? The for which the money is raised by taxation answer must be in the negative. The statute must be so clear and palpable as to be imme- under review does not attempt or purport to diately perceptible to every mind. Turner v. authorize the issuance or donation of the bonds Althaus, 6 Neb. 54; Alfalfa Irrig. Dist. Direct to private individuals, or the corporation unors v. Collins, 46 Neb. 411; Brodhead v. Mil- der whose auspices the exposition is to be held; waukee, 19 Wis. 658; Sharpless v. Philadelphia, nor does the act contemplate that the money 21 Pa. 150, 59 Am. Dec. 759; People, Board of derived from the sale of the bonds shall be deWater Comrs., v. East Saginaw, 33 Mich. 164; voted to promote the interest of a few; but the Walker v. Cincinnati, 21 Ohio St. 14, 8 Am. intention of the law was to enable any county Rep. 24: Stockton & V. R. Co. v. Stockton, 41 Cal. availing itself of its provisions to raise the 147; Weismer v. Douglas, 64 N. Y. 91, 21 Am. means with which to meet the expenses of Rep. 586; Citizens' Suv. & L. Ass80. v. Topeka, erecting a suitable building or buildings, and 87 U. S. 20 Wall. 664, 22 L. ed. 461. In the maintaining the same, and an exhibit of the last case it was said: "It is undoubtedly the resources of the county at the Trans-Mississippi duty of the legislature which imposes or au- & International Exposition, to be held in the thorizes municipalities to impose a tax to see city of Omaha in 1898. The proceeds of the that it is not to be used for purposes of private bonds are to be disbursed for the purpose meninterest, instead of public use; and the courts tioned in the law by Douglas county, through can only be justified in interposing when a its officers and agents. We cannot determine violation of this principle is clear and the rea-judicially that such an object is purely prison for interference cogent. And in deciding whether, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation." The language of Folger, J., in his opinion in Weismer v. Douglas, 64 N. Y. 99, 21 Am. Rep. 586, deserves to be reproduced here: "It is a general rule that the legitimate object of raising money by taxation is for public purposes and the proper needs of government, general and local, state and municipal. When we come to ask, in any case, what is a public purpose, the answer is not always ready, not easily to be found. It is to be conceded that no pinched or meager sense may be put upon the words, and that if the purpose designated by the legislature lies so near the border line that it may be doubtful on which side of it it is domiciled, the courts may not set their judgment against that of the lawmakers." In Alfalfa Irrig. Dist. Directors v. Collins, 46 Neb. 420, occurs this language: "While all agree that the legislature cannot, without the consent of the owner, appropriate private property to purposes which in no way subserve public interests, the rule is quite as firmly settled that the courts will not interfere by declaring acts invalid simply because they may differ with the lawmaking power respecting the wisdom or necessity thereof. For if, by any reasonable construction, a designated use may be held to be public in a constitutional sense, the

vate, and not public in its character, especially in view of the legislation and adjudication in this state now to be mentioned. The legislature in 1891 appropriated $50,000 "to provide for a presentation of the products, resources, and possibilities of the state of Nebraska at the World's Columbian Exposition." Laws 1891, chap. 57. An additional appropriation of $35,000 was subsequently made for the same purpose. Laws 1893, chap. 41. Both of those amounts were paid by the state treasurer, and the money was expended without anyone challenging the legality of the appropriations on the ground that they were not made for the public good. Our legislature appropriated $100,000 at the last session for the purpose of defraying the expenses of the state in making a proper exhibit of its resources and products at the said Trans-Mississippi & International Exposition. Laws 1897, chap. 88, p. 369. Section 3, art. 1, chap. 2, Comp. Stat. provides that $2,000 shall be paid annually out of the state treasury to the state board of agriculture to be used in payment of premiums awarded by said board at the state fair. And § 10 of the same article and chapter authorizes the payment to the state horticultural society of $1,000 annually for the use and benefit of said society. The legislature has each session made the appropriations required by said sections for the purposes therein indicated, and the same have been paid without a suggestion from any source that the money was not devoted to a public use. Section 16 of the same article and chapter authorizes a county, under certain restrictions, to appropriate and pay to the county agricultural society not exceeding $100 for every 1,000 inhabitants in the county, to be expended by such society in fitting up such fair grounds, but for no other purpose." This section has never been assailed as being invalid, although it has remained upon the statute books for nearly twenty years. Section 12 of article 1 of said chapter 2 authorizes

and prosperity of her whole people. In short it will encourage progress, and progress will insure increased intelligence, wealth, and happiness for her people individually and collectively. Undeniably, that which promotes such an object and facilitates such a result in any county is, to that county, a county purpose in the truest sense."

the payment by county boards, to agricultural | thereby tending to the permanent betterment societies complying with the provisions thereof, of a sum equal to 3 cents for each inhabitant in the county from the county general fund. In State, Custer County Agri. Soc. & Live Stock Exchange, v. Robinson, 35 Neb. 401, it was ruled that this section authorized the ap. propriation of money for a public purpose, and the expenditure was permissible under the Constitution. That case is not distinguishable in principle from the one at bar.

case was not conferred by statute. Upon principle and authority, we are constrained to hold that the bonds were voted for a public purpose, one for which the money of the county may be lawfully devoted.

No case in conflict with the foregoing has come under the observation of the writer. The adjudication of other courts fully sus Decisions, however, are to be found in the tains the same doctrine. The city of Philadel- books, holding the appropriation of moneys phia appropriated $50,000 to meet the official for celebrations of public events to be invalid; contingent expenses incidental to the Centen- but such decisions turn on the question of nial Exposition. It was held that this appro- statutory authority, rather than on the right priation was valid. Tatham v. Philadelphia, 11 of the legislature to confer such power. See Phila. 276. An appropriation by a town, made Hood v. Lynn, 1 Allen, 103; Tash v. Adams, in pursuance of a statute to celebrate the centen- 10 Cush. 252; New London v. Brainard, 22 nial anniversary of its incorporation, has been Conn. 552. In Hayes v. Douglas County, 92 upheld. Hill v. Easthampton, 140 Mass. 381. Wis. 429, 31 L. R. A. 213, it was ruled that Likewise an appropriation of money by a city a county tax levied for the purpose of defrayfor the celebration of holidays is held to be ing the expenses of placing blocks of stone for a public purpose. Hubbard v. Taunton, from the county in the Wisconsin State Build140 Mass. 467. The legislature of California ing at the Columbian World's Fair was unaumade an appropriation of $300,000 for the pur- thorized and void. The ground for this holdpose of making a state exhibit at the World's ing does not appear in the report of the case, Fair Columbian Exposition. The supreme as the only reference to the subject in the court of that state, in Daggett v. Colgan, 92 body of the opinion is in the language followCal. 53, 14 L. R. A. 474, held the appropria-ing: "The Columbian Fair stone tax was altion was for public use, and was constitu- together unauthorized and void." We pretional. In Norman v. Kentucky Bd. of Man-sume that the power to impose the tax in that agers of World's Columbian Exposition, 93 Ky. 537, 18 L. R. A. 556, it was decided that an appropriation of $100,000 to enable the state to participate in the World's Fair at Chicago was a valid exercise of legislative power, under a Constitution which provided, "Taxes Attention will now be given to the question shall be levied and collected for public pur- whether the proposition to issue these bonds poses only." The legislature of the state of received the requisite number of affirmative Tennessee, in 1895, passed an act authoriz-votes. Sections 27 to 30, inclusive, art. 1, chap. ing the several counties of the state to ap- 18, Comp. Stat., relates generally to the submispropriate money to provide for an exhibit of sion of questions to a vote of the electors of the the resources at the Tennessee Centennial Ex-county. Said § 30 declares that "if it appears position to be held at Nashville. The county that two thirds of the votes cast are in favor of Shelby, in that state, appropriated $25,000 of the proposition, and the requirements of in pursuance of said act; but the proper county the law have been fully complied with, the officer refused to issue a warrant against said same shall be entered at large by the county appropriation, claiming that the act was in-board upon the book containing the record of valid. On an application for a writ of mandamus, the supreme court, in Shelby County v. Tennessee Centennial Exposition Co. 96 Tenn. 653, 33 L. R. A. 717, overruled the contention, saying: "To our minds it is entirely clear that an exhibition of the resources of Shelby county at the approaching State Centennial Exposition is a county purpose. In view of the fact that the event to be celebrated is one of no less note and importance than the birth of a great state into the American Union, and of the further fact that the exposition is reasonably expected to attract great and favorable attention throughout the country, and be participated in and largely attended by intelligent and enterprising citizens of numerous other states, at least, it is beyond plausible debate that such an exhibition is well calculated to advance the material interests and promote the general welfare of the people of the county making it. It will incite industry, thrift, development, and worthy emulation in different avenues of commerce, agriculture, manufacture, art, and education within the county,

their proceedings, and they shall then have power to levy and collect the special tax in the same manner that the other county taxes are collected." This section has been construed as requiring, to adopt a proposition involving the issuance of bonds, an affirmative vote of two thirds of the electors participating at the election at which the same is submitted. State, Mann, v. Anderson, 26 Neb. 517; Stenberg v. State, Keller, 50 Neb. 127. So that, if the provisions of said § 30 apply to the bonds in question, they failed to carry, since they did not receive two thirds of the votes cast at the election, although more than two thirds of those voting on the proposition were in favor of the bond. It is very evident that said § 30 cannot be invoked here, because it is embraced in the statute which provides generally for the submission of questions to a vote of the county, and must give way to any special act upon the same subject. The law under which the bonds in controversy were voted relates specifically to the subject of issuing bonds to enable counties to participate in

interstate expositions, and the provision therein as to the vote necessary to carry that class of bonds governs and controls, for the obvious reason that it is a special law in relation to a particular subject. This principle has been recognized by a long line of decisions in this state. McCann v. McLennan, 2 Neb. 286; People, Gere, v. Gosper, 3 Neb. 310; Albertson v. State, 9 Neb. 429; Richardson County v. Miles, 14 Neb. 311; Fenton v. Yule, 27 Neb. 758; State, Seward County, v. Benton, 33 Neb.

823; State, Gage County, v. Benton, 33 Neb. 834; Richard v. Clayton County Comrs. 40 Neb. 51; Merrick v. Kennedy, 46 Neb. 264; Van Horn v. State, Abbott, 46 Neb. 62; State, Farmers' Mut. Ins. Co., v. Moore, 48 Neb. 870.

It follows that these bonds were carried by the requisite vote, and, no valid objection having been urged against their registration, a peremptory writ of mandamus is ordered, as prayed.

OREGON SUPREME COURT.

Anna FINSETH, Respt.,

v.

by iron rails. That on the 11th of said month plaintiff purchased from defendant a ticket,

CITY & SUBURBAN RAILWAY COM- and at about 10 o'clock at night entered one of

PANY, Appt.

(........ Or.........)

1. A street-railway company which, to facilitate its own business, constructs a platform along a street temporarily submerged during a freshet, for the accommodation of its passengers, is required to make such walk reasonably safe, but not to make it "as reasonably safe as possible."

2. A street-railway company which constructs a walk over a street temporarily submerged by a freshet, for the use of passengers in going from one car to another, is not, as matter of law, required to provide a light

for such walk at night.

(December 7, 1897.)

its cars at the west end of Morrison street Bridge, in crossing which she surrendered her ticket, and received from the conductor in lieu thereof a transfer check, which entitled her to ride on another car of the company from the east side of said submerged district to the intersection of East Twenty-First and Clinton streets, and having arrived at the east end of said bridge she alighted from the car, and attempted to pass over the structure in question, which was used by defendant's passengers and the public, but, the night being dark, and the passageway poorly lighted, and having no guard or railing, her foot slipped between the planks, and, falling thereon, she sustained the injury of which she complains. The issues having been joined, a trial was had, resulting in plaintiff's obtaining a judgment for the sum

APPEAL by defendant from a judgment of of $500, from which defendant appeals.

the Circuit Court for Multnomah County in favor of plaintiff in an action brought to recover damages for personal injuries alleged | to have been caused by defendant's negligence. Reversed.

Statement by Moore, Ch. J.:

This is an action by Anna Finseth against the City & Suburban Railway Company to recover damages sustained in consequence of an injury received while crossing over a roadway alleged to have been negligently constructed by defendant. The facts are: That in June, 1894, defendant was the owner of and operated an electric street railway in the city of Portland, the line of its road extending across the Willamette river upon Morrison street bridge, the east approach to which, for a distance of about 500 feet, in consequence of an unprecedented rise in the river, was covered with water to the depth of about 4 feet, thereby obstructing travel on electric cars, but, to accommodate its passengers, defendant erected upon the north side of East Morrison street a temporary sidewalk, consisting of two lines of planks each 12 inches wide, laid about 12 inches apart, and resting upon railroad ties placed one upon another at right angles with the planks, in such manner as to form piers, situated about 8 feet apart, and of sufficient height to be above the water; the whole structure being weighted down and held in place

NOTE. As to the measure of care which a car.

rier must exercise for the purpose of keeping its platforms and approaches safe, see note to Johns

v. Charlotte, C. & A. R. Co. (S. C.) 20 L. R. A. 520.

Messrs. Dolph, Mallory, & Simon, for appellant:

While carriers of passengers are bound to exercise a high degree of care for the protection of those coming under their care, they are not so bound in respect to the public in general, and when the relation of passenger and carrier ceases, the carrier is only bound to exercise ordinary care to prevent injury, such as is required of any individual.

Upon stepping from defendant's car at the west side of the submerged portion of East Morrison street, plaintiff ceased to be a passenger.

Creamer v. West End Street R. Co. 156 Mass. 320, 16 L. R. A. 490; Bigelow v. West End Street R. Co. 161 Mass. 393; 2 Wood, Railway Law, p. 1038; Thomp. Carr. § 9, p. 446; Booth, Street Railways, p. 445.

The bridge was erected on the site of the sidewalk, and was used by the public in general, it being the only means of passage over the flooded portion of the street to and from the Morrison street bridge. There were no restrictions as to its use; all persons passing that way used it; hundreds of people passed over it daily. This general use by the public made it a public highway. No formal acceptance by the city was necessary; it was enough that the public traveled over it.

People v. Davidson, 76 Cal. 166; Elliott, Roads & Streets, pp. 22, 23; Heacock v. Sherman, 14 Wend. 58; State v. Campton, 2 N. H. 513; Saulsbury v. Ithaca, 94 N. Y. 27; Requa v. Rochester, 45 N. Y. 129.

To create a liability for negligence, the re-gers from harm which could be prevented by sult for which the actor is responsible must be reasonable foresight. Moreland v. Boston & one that he might reasonably have foreseen.

2 Thomp. Neg. 2, p. 1085; Shearm. & Redf. Neg. $739; Crocheron v. North Shore Staten Island Ferry Co. 56 N. Y. 656; Pollock, Torts, pp. 36, 37; 16 Am. & Eng. Enc. Law, p. 437; Henry v. Southern P. R. Co. 50 Cal. 176; Dougan v. Champlain Transp. Co. 56 N. Y. 1.

Absolute safety is not attainable.

Titus v. Bradford, B. & K. R. Co. 136 Pa. 618; Northern C. R. Co. v. Husson, 101 Pa. 1, 47 Am. Rep. 690; Laflin v. Buffalo & S. W. R. Co. 106 N. Y. 136, 60 Am. Rep. 433; Dougan v. Champlain Transp. Co. 56 N. Y. 1; Whart. Neg. § 16, 74, 77.

It is error to give instructions which assume facts not in evidence.

Latshaw v. Territory, 1 Or. 140; Bailey v. Davis, 19 Or. 217; People v. Ah Too, 2 Idaho, 47; Doyle v. People, 147 Ill. 394; Kelly v. Fleming. 113 N. C. 133; Beach v. Netherland, 93 Ga. 233; Kansas Invest. Co. v. Carter, 160 Mass. 421; French v. Ware, 65 Vt. 338; Ratigan v. State, 33 Tex. Crim. Rep. 301; Galveston, H. & S. A. R. Co. v. Waldo (Tex. Civ. App.) 26 S. W. 1004; Locke v. Priestly Express Wagon & Sleigh Co. 71 Mich. 263; Jackson v. State, 88 Ga. 784; Frost v. Ainslie Lumber Co. 3 Wash. 241; Swift v. Tatner, 89 Ga. 660; Texas Land & Loan Co. V. Watson, 3 Tex. Civ. App. 233; Sloan v. Coburn, 26 Neb. 607, 4 L. R. A. 470; Territory v. Evans, 2 Idaho, 391; Rock Island V. Cuinely, 126 Ill. 408; Kidd v. State, 83 Ala. 58; Hirshberg v. Strauss, 64 Cal. 272.

P. R. Co. 141 Mass. 31. A street car company lays its tracks chiefly upon, and operates its cars in, the public streets of a town or city, and, unless prohibited by municipal ordinance may stop at any place along its line to permit passengers to enter its cars or depart therefrom. In the very nature of things, such a carrier can have no stations, for to permit it to erect and maintain them would amount to a needless obstruction of the public highway; and hence, when operating its cars within the limits of a city or town, it must receive its passengers from, and discharge them in, a public street; and, as was said in Creamer v. West End Street R. Co. 156 Mass. 320, 16 L. R. A. 490: "The street is in no sense a passenger station, for the safety of which a street railway company is responsible. When a passenger steps from a car upon the street, he becomes a traveler upon the highway, and terminates his relations and rights as a passenger; and the railway company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the sidewalk." A street-car company, having no stations, owes no duty to the public or to its passengers to erect or maintain a passageway from its stopping places in the street to the sidewalk; and when it discharges its passengers in the highway its contract has been fully performed, and the relation of carrier and passenger thereupon ceases. Smith v. City R. Co. 29 Or. 539. The tickets it issues do not prescribe at what point on its line the passenger may enter or leave its cars, but a person having obtained a ticket or paid his fare to the conductor could probably commence a journey at any stopping place, and ride in its car to any point within the terminal of its line; but if he leaves the car, for any purpose, without having obtained a transfer check, the contract for transportation would be fully performed by the carrier. If, however, the passenger obtains such evidence of his right to resume the journey, there must be, of necessity, an interruption of the relation of carrier and passenger from the moment he leaves one car until he enters another; but would this interruption relieve the carrier from liability to a person injured while going from The important question for consideration is one car to another over a passageway erected the duty, if any, which the defendant owed to by it for the accommodation of such persons, the plaintiff at the time of the accident. The and to facilitate its business? The answer to measure of care demanded of a common this question must depend upon the duty, if carrier must always be in proportion to the deany, which a carrier owes to those persons gree of danger to which passengers are subjec- whom it invites to use such portage, for negted by the means adopted for their transporta-ligence in all cases must be predicated upon a tion or accommodation; and, notwithstanding breach of duty. The defendant was not a person, for some purposes, may be deemed a passenger before he enters or after he leaves a car, the carrier does not owe him, under such circumstances, that degree of care which it is incumbent upon the company to exercise when he is seated within its car, and has surrendered himself to an observance of its rules. The negligent operation of an electric car may cause the death of, or inflict great bodily injury upon, a passenger, and for this reason the law of humanity wisely demands that a carrier while not an insurer, must exercise, in the management of such dangerous agencies, the highest degree of care, in protecting its passen- I

Messrs. Flegel & Stanislawsky and McGinn, Sears, & Simon, for respondent: Defendant constructed the walk as an approach or means by which its passengers could get from one of its cars to another, and invited its passengers to use it for that purpose, and it was bound to construct a walk and keep it reasonably safe for that purpose at the different times of day when it was used by the defendant's passengers.

Skottowe v. Oregon Short Line R. Co. 22 Or. 430, 16 L. R. A. 593.

Moore, Ch. J., delivered the opinion of the court:

obliged to construct a passageway across the submerged street, but, having done so, it thereby invited its passengers to travel over the same, and tacitly represented to them that it was reasonably safe for that purpose; and, such being the case, did it owe to them any duty to maintain or light the way because it was laid upon a public street? The walk having been erected to serve a temporary purpose only, we think it cannot be said that, because it had been used by the public for a short time, the municipality thereby adopted and accepted it as a part of its system of highways; for when the water receded the sidewalk

constructed by the city would be used, and the passageway so erected by defendant, which theretofore had been used as a part of the highway, must necessarily become a nuisance. If plaintiff, without any fault upon her part, had sustained the injury complained of in the manner indicated, after the water had fallen, there is but little doubt that defendant would have been liable therefor, if, in consequence of its neglect, the passageway became unsafe; for no person has the right to do an act which renders the use of the street hazardous, or less secure than it was left by the municipal au thorities. Whoever does so by placing unauthorized obstructions thereon becomes a nuisancer, and is liable to any person who, using due care, sustains any special injury therefrom. 2 Dill. Mun. Corp. § 1032. But while the freshet continued the walk in ques tion could not be considered a nuisance, or even an obstruction, for it was the only means by which the public was enabled to use the street, and without it travel would have been suspended. Defendant having constructed the way to facilitate its business, and to accommodate persons who might be induced to patronize its cars, owed to such persons at least the duty of keeping it, as long as it might be used for that purpose, in a reasonably safe condition, and having invited plaintiff to pass over the same, it is liable for any neglect in that respect; but it owed no greater duty, and is not chargeable with a higher degree of care and diligence, by being a common carrier, than is expected of a private individual under similar conditions. Gulf, C. & S. F. R. Co. v. Warlick (Ind. Ter.) 35 S. W. 235.

of such walk, upon which she was to continue her passage to her place of destination, fell, and was injured thereby, without any fault or negligence on her part, then it is your duty to find in favor of the plaintiff." It will be observed that the jury were told that it was incumbent upon defendant to construct the passageway in a manner as reasonably safe as possible, etc. This, in our judgment, carries the liability too far. Defendant was required to make the walk reasonably safe, it must be admitted; but when this degree of care is so qualified as to render the walk as reasonably safe as possible, it thrusts upon a carrier a duty never hitherto demanded, and, if it were to prevail, would tend to render a carrier liable in all cases, for, after an accident occurs, and the cause of it is ascertained, it would not be difficult to procure witnesses to say that, in their opinion, it was possible to have guarded against its occurrence and thus have prevented the injury.

The court also gave the following instruction: "(3) In this case, if the walk was so constructed that it would be dangerous for defendant's passengers to use it in passing over the same from one car of the defendant to another in the darkness, or during the night-time without a light, then it was the duty of the defendant to have provided a light during such darkness; and if it failed and neglected to do this, and for this reason the plaintiff, while attempting to cross over said walk as such passenger fell and was injured thereby without any negligence or fault on her part, then your verdict should be in her favor." If the walk was so constructed that it was dangerous for deWith this understanding of the rule, it be- fendant's passengers to use the same after night comes necessary to examine that portion of the it could doubtless have rendered the way safe judge's charge to which defendant excepts. by other means than by lighting it. In VicksThe jury were instructed as follows: (1) If burg & M. R.. Co. v. Howe, 52 Miss. 202, the the defendant in this case undertook to trans- track being obstructed by a wrecked freight port passengers for hire over its road from the train, a passenger, on a dark and rainy night, west side to points on the east side of the was obliged to walk around the obstruction to Willamette river, in this city, and for that another train, and in doing so fell from some purpose undertook to provide and construct a planks laid over a ditch, and sustained the inwalk or elevated passageway over that part of jury complained of. There was no light there East Morrison street where its tracks and the nor was any person stationed at that point to street where obstructed by the flood, so that warn the passengers of danger, and it was such passengers could use the same for the held that the failure to place a light at the purpose of passing from one car of the defend- crossing of the ditch, or to give any warning ant to another over such obstruction, it was its of the danger, or to take some means to guard duty to construct such walk or passageway in passengers against injury from the extra haza manner as reasonably safe as possible, taking ard to which they were exposed in crossing, into consideration the condition of this part of was such negligence as rendered the company the flooded district, and to keep it in such rea- liable for any injury sustained by passengers sonably safe condition as long as it was under in crossing. In that case the crossing was its control, and continued to be used for pass temporary, and other means than a light were age of passengers from one car of the defend- considered adequate protection against the ant to another; and if you believe from the danger incident to the transfer. The defendtestimony that the defendant undertook to and ant having undertaken to provide a passagedid construct this walk for such purpose, but way for the convenience of its passengers and failed and neglected to construct it in a rea- those intending to patronize its cars, it was resonably safe condition, taking all the circum-quired to select substantial materials, and stances into consideration, or failed and neglected to keep it in such reasonably safe condition during the time it was being used for defendant's passengers, and under its control, and that, by reason of such failure and negligence and unsafe condition of such walk, the plaintiff while passing over said walk from a car of the defendant on the west, in which she had been riding as a passenger, to a car on the east

construct the way with a view to safety, considering the nature of the temporary use for which it was designed; and, so long as defendant continued to use the passageway to facilitate its business, it was in duty bound to maintain it in like condition, and for any neg lect in this respect it would be liable to a person sustaining injury thereby whom it invited to pass over the same. The passenger, however,

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