Missouri Pac. Ry. Co. v. Irvin transact business upon its platform, and negligently place dangerous obstacles where they would be liable to injure passengers whom it was the duty of the railway company to protect from danger. This train passed in the nighttime; the platform was dark; plaintiff was not aware of the presence of this truck. It is the duty of a railway company to keep its platform reasonably clear and free from obstacles upon which passengers are liable to be injured. This truck was left in the darkness within five inches of the passenger car and within a few feet from where it had just been used in loading express matter onto the train. This was negligence, and it must be treated as the negligence of the railway company regardless of who owned the truck or whose employee placed it in a position dangerous to people on the passenger train. The district court refused to give an instruction to the jury requested by the appellant, which reads: "The jury is instructed that the plaintiff contends that, by reason of the fact that Albert Smith stopped on the second step of said passenger car, he was prevented from getting upon said platform, and was consequently injured. There is no claim that there was any connection between the act of said Smith in remaining upon said step and the position of said express truck, and as one person is not liable for the injury done by another unless they act in concert, the defendant would not be liable in this case if the accident was the result of Smith's obstructing the plaintiff from getting upon the car." It is difficult to say what specific legal proposition was intended to be presented by this instruction. The court might well have refused to give it because calculated to confuse and mislead the jury. It is not clear and specific as all instructions should be. With doubt and hesitation we assume that the intention of the instruction was to have the jury advised as matter of law that the proximate cause of the injury was Smith, and not the express truck. The cases cited, however, in support of the instruction, would justify the inference that the intention may have been to have the court say to the jury in effect that the case ought to have been brought against Smith instead of the company. But whatever may have been the intention, we are unable to say that the court erred in refusing to give the instruction to the jury. Objection has been made to an instruction given by the court upon its own motion which reads: "It is the duty of the persons in charge of a passenger train in starting and stopping such train at a station to look to the safety of passengers, and not to start or stop such train in such manner as to result in the injury of a perSon in getting on or off thereof and using proper care for his own safety." Under the evidence this instruction was not material. The injury of which the plaintiff complains was not caused by the mere manner in which the train was started, and the instruction might well have been omitted; but we are unable to perceive how the jury could have been misled or confused by it, or how the Curtis v. Southern Ry. Co rights of the defendant could have been materially prejudiced thereby, and we cannot say that error sufficient to justify a reversal was committed by the court in giving it. We do not find any material error in the case, and the judgment of the district court is affirmed. All the Justices concurring. CURTIS 2. SOUTHERN RY. Co. et al. (Supreme Court of North Carolina, Dec. 23, 1909.) Carriers Action for Death of Passenger-Burden of Proof.*-In an action for negligently killing a passenger in a collision, the burden was on defendants to show that they discharged their duty to him. Appeal from Superior Court, Buncombe County; J. S. Adams, Judge. Action by T. E. Curtis, administrator of B. Allen Bryant, against the Southern Railway Company and another. From a judgment for plaintiff, defendant company appeals. No error. Civil action to recover damages on account of the negligent killing of plaintiff's intestate, B. Allen Bryant, a passenger who was admitted to have been killed in a collision between a passenger and freight train of defendant company, alleged to have been caused by the negligence of the defendant Leonard, a brakeman in the company's employment, tried at September term, 1909, of the superior court of Buncombe county, his honor Jos. S. Adams, judge presiding. The two issues of negligence and damage were submitted and found for the plaintiff. The defendant appealed. Moore & Rollins and II. B. Rodman, for appellant. Zeb. F. Curtis and Craig, Martin & Thompson, for appellee. PER CURIAM. 1. In respect to the issue of negligence the matter in controversy is one of fact purely, with the burden upon the defendants to show that they discharged their duty to the passenger, and we find no error committed on the trial of it. 2. In respect to the assignment of error in the charge of the judge upon the issue of damage, we are of opinion that it is unnecessary to pass upon or discuss it. The evidence in regard to the net earnings of the deceased and his age and condition in life, business, etc., is uncontradicted, and we think that it fully warrants the sum awarded by the jury even if it be guaged with reference to the theory contended for by defendant. No error. The CHIEF JUSTICE did not sit on the hearing of this case. *See extensive note, 31 R. R. R. 697, 54 Am. & Eng. R. Cas., N. S., PENSACOLA ELECTRIC Co. v. ALEXANDER et al. (Supreme Court of Florida, Division A., Nov. 20, 1909.) [50 So. Rep. 673.] Carriers-Injury to Passenger-Question for Jury.*-Evidence that a passenger was injured by the sudden starting of an electric car, while alighting, with others, who were frightened by flashes of electricity, and that such flashes were caused by the carelessness or inexperience of the motorman, makes a question for the jury. Carriers Injury to Passenger-Evidence. When it is in evidence that the motorman was new at the business and may have used the brake improperly, whereby the injury was caused, the railway company has not made it appear that it used even ordinary care and caution. Carriers-Injury to Passenger-Burden of Proof-Instruction.*— An instruction that "the burden of proof is upon the plaintiff to show that the cause of the accident was due to the negligence of defendant, and, if you are not satisfied by a preponderance of evidence that the plaintiff's injury was the result of negligence of the defendant or its employees, you will find for the defendant," is properly refused, when the plaintiff was injured by the operation of an electric car. (Syllabus by the Court.) Error to Circuit Court, Escambia County; J. E. Wolfe, Judge. Action by John H. Alexander and another against the Pensacola Electric Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Blount, Blount & Carter, for plaintiff in error. Jones & Pasco, for defendants in error. COCKRELL, J. This is an action for personal injuries, occasioned by the alleged negligence of the Pensacola Electric Company in the operation of its street car. There was evidence from which the jury could find that Mrs. Alexander, a passenger, was injured by the negligence of the employees of the company in starting suddenly the car while many passengers were in the act of alighting therefrom, being frightened by flashes of electricity, and, further, that these flashes were unnecessarily caused by the carelessness or inexperience of the motorman. These acts were sufficient to make a case for the jury on the question of negligence, and therefore the affirmative instruction to find the defendant not guilty was properly refused. *See foot-note of preceding case. 35 R R R-13 Pensacola Electric Co. v. Alexander It is argued that no negligence was shown, in that the present knowledge of electricity cannot prevent absolutely these flashes and burning of fuses, even when the greatest care is used. We need not now dwell on the availability of this defense, as it does not appear here that even ordinary care and caution was used. The chief eyewitness for the defense, the conductor on the car, testified the motorman was a new man, and may have caused the trouble by improper use of the brake. The motorman was not a witness, and no proof was offered as to his skill, habits, or experience. The court refused to instruct the jury, as requested by the defendant, as follows: "The burden of proof is upon plaintiff to show that the cause of the accident was due to the negligence of defendant, and if you are not satisfied by a preponderance of evidence that the plaintiff's injury was the result of negligence of the defendant, or its employees, you will find for the defendant." The statute makes the fact of injury by the running of the car prima facie evidence of negligence in its operation, thus shifting the former burden of proof, and casting it upon the party most likely to possess the knowledge of the real cause of the injury. It is not founded wholly, if at all, as argued by the plaintiff in error, upon the idea of "res ipsa loquitur," upon which the cases cited are based, and to have given the charge would have been to ignore the statute and numerous decisions of this court construing it. See Seaboard Air Line Ry. Co. v. Smith, 53 Fla. 375, text 388, 43 South. 235, and cases there cited. The various counts in the declaration sufficiently apprised the defendant of the manner of the accident to prevent a charge of variance between allegation and proof. The judgment is affirmed. WHITFIELD, C. J., and SHACKLEFORD, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. CHICAGO, R. I. & P. Ry. Co. v. James. (Supreme Court of Kansas, Nov. 6, 1909.) [105 Pac. Rep. 40.] Injury to Passengers.-A car of a freight train moving about 30 miles an hour between stations was ignited by sparks from the engine. The conductor discovered the fire, and announced it to several passengers in the caboose. One of them ran to the rear platform, and was looking forward along the side of the train, when a severe lurch caused by the application of the brakes by the engineer threw him to the ground, causing severe injuries. In an action to recover damages therefor, held, evidence that the conductor called out in a loud voice and excited manner within the hearing of the passengers that the train or a car was on fire, and that thereupon the plaintiff became excited and alarmed, and ran to the rear platform to see where the fire was, and what danger he was in, if any, and to provide for his safety if there was any danger from fire, his injury resulting from his being upon the platform while the train was suddenly stopped, does not tend to establish such negligence on the part of the conductor as to render the company liable. Injury to Passengers-Evidence.-Evidence that the lurch which threw the plaintiff to the ground was caused by the engineer making an emergency application of the air brakes, and that the train could have been stopped almost as quickly, and with less jolting, by a more gradual application, resulting in an ordinary or service stop, does not tend to establish such negligence on the part of the engineer as to render the company liable. Johnston, C. J., and Mason and Benson, JJ., dissenting. On Rehearing. Carriers Injury to Passengers-Negligence of Conductor.-Where the conductor of a freight train while riding in the caboose with a number of passengers discovers that one of the cars is on fire and announces the fact in a loud voice and excited manner, his conduct may be such as naturally to lead the passengers to suppose that the interior of the caboose has become a place of danger and to seek safety on the platform; and held that, under the facts of this case, whether his conduct was of that character was a question for the jury. Carriers-Injury to Passengers-Negligence of Conductor. It is negligence for a conductor to cause a passenger to go upon the platform unnecessarily at a time when a sudden stopping of the train is to be expected. Carriers Injuries to Passenger-Action-Contract of CarriageAccrual of Right of Action. Where a contract provides that no suit shall be brought upon it unless within six months after a cause of |