of Texas in Evansich v. Railway Co., 57 Tex. 123 (44 Am. Rep. 586). The doctrine was applied in Whirley v. Whiteman, 1 Head, 610; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169); Ferguson v. Railway, 17 Ga. 102; Bridger v. Railroad Co., 25 S. C. 24; City of Pekin v. McMahon, 154 Ill. 141 (39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114). See, also, Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179 (6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387). Nor is it only in cases of turntables that this principle is applied. The case of Hydraulic Works Co. v. Orr, 83 Pa. St. 332, is an instructive case. See, also, Gramlich v. Wurst, 86 Pa. St. 79 (27 Am. Rep. 684). This subject was again reviewed by the Supreme Court of the United States in Union Pac. R. Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. 619); and in an elaborate opinion by Mr. Justice Harlan, concurred in by the entire bench, after a full review of the English and American authorities, the doctrine of Railroad Co. v. Stout was reaffirmed. On the other hand, the courts of Massachusetts, New Hampshire, New Jersey, and New York have refused to follow the case of Railroad Co. v. Stout and the current of authority.

It is said that Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, has been disapproved by later English cases, and the case of Mangan v. Atterton, L. R. 1 Exch. 239, is cited. But the latter case has itself been disapproved by Chief Justice Cockburn in Clark v. Chambers, 3 Q. B. Div. 327, in which case it was said:

"It appears to us that a man who leaves in a public place, along which persons, and, amongst them, children, have to pass, a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character; and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion."

The case cited from 5 Kan. 191 [Caulkins v. Mathews], as sustaining the view that a trespasser can under no circumstances have a right of action, is certainly overruled by the later Kansas cases cited above, to the extent, at least, that the latter cases hold that where there is the element of enticement of young children, who act upon childish instincts, a recovery may be had by a trespasser.

Reference is had to a discussion of this subject in the opinion of Hall, J., in Keffe v. Railway Co., 2 Cent. Law J. 172. It should be stated that this was a discussion in an opinion by the circuit judge, which was not followed by the supreme court of Minnesota, but, on the other hand, the entire bench concurred in the rule laid down in Railroad Co. v. Stout.

It will be seen that the great weight of authority in this country sustains the rule laid down in Railroad Co. v. Stout. Its authority has been recognized by our own decisions, although in cases where a ruling upon the precise point was not called for. I do not share the apprehension of my Brother HOOKER that a man would not be safe to leave agricultural implements on his farm if this rule should obtain. Undoubtedly there must be something about the premises to entice a child, and, unless there is something calculated to allure a child of tender years, and to appeal to his childish instincts, no duty of the owner is violated. Nor do I understand that the question of negligence or of no negligence is to be decided by ascertaining whether a farmer may or may not be guilty of the act. You may call the doctrine of these cases the result of evolution of the law, or what you please. It is a humane doctrine, and the principle cannot be better stated than in the extract from Thompson on Negligence above quoted. I do not feel justified in ignoring the overwhelming weight of authority which makes for this rule, as well as the expressions of our own court. I dissent from the views expressed by Mr. Justice HOOKER.

As a majority of the court express the view that no right of action exists as against the corporation, it becomes

unnecessary to inquire whether the directors are responsi

ble.

MOORE, J., concurred with MONTGOMERY, C. J.

NIEBOER v. DETROIT ELECTRIC RAILWAY. 1

STREET RAILWAYS-INJURY TO PASSENGER-CONTRIBUTORY NEGLI-
GENCE-RIDING ON BUMPER.

Plaintiff, while riding on the rear bumper of an electric car,
was struck by another car, and injured. In an action
against the company, he claimed that he rode where he did
because the car was crowded; but it appeared that he could
have taken another car two or three minutes later, in which
there was ample room. There was nothing to show any
custom authorizing him to ride on the bumper, and the con-
ductor, on observing his position, told him he had better go
inside or wait for another car. Held, that plaintiff was
guilty of contributory negligence, and could not recover for
the injury. MOORE, J., and MONTGOMERY, C. J., dissenting;
being of opinion that the facts warranted the inference that
plaintiff occupied his position with the assent of the con-
ductor.

Error to Wayne; Carpenter, J. Submitted June 4, 1901. Decided October 22, 1901.

Case by Peter H. Nieboer, by next friend, against the Detroit Electric Railway, for personal injuries. From a judgment for plaintiff, defendant brings error. Reversed.

Plaintiff, about 6 o'clock p. m., desired to take one of the defendant's cars on the usual route to his home. Under the plea that the car was crowded, he climbed upon the deadwood or "bumper" at the rear of the car. The

1 Rehearing denied, but new trial granted, October 18, 1902.

deadwood is a block of wood 3 feet long at the longest part, beveled at the corners, about 6 inches wide, and at the outside is from 2 feet 4 to 2 feet 6 inches long. Two large bolts go through the deadwood, and are bolted to a cast-iron drawhead in the center. A drawpin an inch thick goes through the deadwood into the drawhead. Above the head of the deadwood are the bolts with the nuts thereon, the head of the drawpin, the staple to which the drawpin is fastened, and the chain attached thereto. The slack of the chain is also on top of the deadwood. The car platforms are inclosed for a space about 3 feet high, with a railing on top. The car was evidently in a crowded condition. Whether plaintiff could have obtained standing room on the platform or inside of the car is not clear. There was room for the conductor to go through the car and collect fares.

Plaintiff testified that he was riding with both feet on the deadwood and both hands hold of the railing, and that it was necessary for him to thus ride to keep from falling off. Two others got on and stood upon the deadwood with him, plaintiff being in the center. Cars were running at intervals of from two to three minutes. The car on which plaintiff was riding had stopped. A rear car was approaching. The motorman, evidently not anticipating that the car in front would stop at that point, was unable to bring his car to a stop before it struck the one in front. The blow was not a severe one, and no one in either car was injured but the plaintiff. In some way his ankle was injured. He was unable to tell how. Either his foot must have been hanging over the deadwood, or he must have been standing with his foot at right angles with the deadwood, so that either his heel or his toes extended beyond it. Plaintiff testified that the conductor had not asked him for his fare. The conductor testified that he asked him for his fare, and that plaintiff replied that he would have to wait until he got his hands in his pockets. The conductor then said to him, "You better get around and get inside, or wait for another car," and

then went through the car to collect fares. The conductor did not collect his fare, but intended to return and collect it after he collected the fares of the other passengers. Before he returned, the accident happened. The case was submitted to the jury, who rendered a verdict for the plaintiff.

Thomas T. Leete, Jr., for appellant.

Ira A. Lieghley, for appellee.

The

GRANT, J. (after stating the facts). Plaintiff was not invited to ride upon the dead wood. No custom was shown permitting him to ride there. The company had instructed its employés not to permit it. It was not intended or sanctioned for the use of passengers. It needs no argument to demonstrate that the position was a dangerous one, and never intended as a place for passengers to ride. The place was so dangerous that the plaintiff considered it necessary to hold on with both hands. According to his own theory, then, it was a place where it would be next to impossible for him to pay fare. There was danger in rounding curves, from sudden stoppage and starting, and from collisions both in front and from the rear, which are not of uncommon occurrence. two passengers who were standing with plaintiff jumped from the car, which was then standing still, and escaped injury. Plaintiff testified that he did not have time to jump. There was neither an express nor implied assent for the plaintiff to ride in this dangerous position. The conductor advised him not to ride there, by telling him that he better get off and wait, or get inside. This language cannot be construed into an invitation. busy time, when people were returning from their work and business to their homes. The conductor was not called upon to stop and put the plaintiff off. He had done all that was required in warning, if, indeed, he needed any warning. Plaintiff knew that, if the car was crowded, others were coming within two or three min

It was a