away.

FRITZ V. RAILWAY CO.

the man was going to hit her. The whole thing was quickly done. The conductor could have seen him coming from the direction of the engine if he had been attending to his business. The plaintiff's father was standing about three paces The car steps are 26 inches wide and 22 inches between rails. The plaintiff's father said that the man who struck her was a large red-faced man, looked like he might have been a mechanic. The conductor helped the plaintiff down. The platform was a good one. The plaintiff introduced certain rules of the defendant company and showed that they were furnished to conductors in its employ:

Rule 408. Conductors must always be vigilant to foresee, and as far as possible to prevent anything which might cause accident or delay to their trains.

Rule 426. They must contribute as far as they can, without being unduly officious, to the convenience and comfort of passengers and must give particular attention to women and children who are unattended, and to all persons who are infirm, inexperienced or otherwise unable to care for themselves.

Rule 448. Passenger conductors should never lose sight of the fact that their duties are of a most delicate and responsible character, and demand unusual judgment, tact and courtesy, and that the safety of their trains and passengers and the reputation of the road are dependent upon their discretion and care.

Upon the close of the plaintiff's testimony the defendant moved for a judgment of non-suit, which was allowed and the plaintiff appealed.

When this cause was before this court at the February Term, 1902 (130 N. C., 279), the testimony was the same as upon this appeal, except that the rules of the company had not then been introduced. Furches, C. J., speaking for the court, said: "After a careful examination of the evi

FRITZ V RAILWAY CO.

dence we are of the opinion that the defendant's motion, at the close of the plaintiff's evidence, to non-suit the plaintiff, should have been allowed. There is no evidence, in our opinion, showing negligence on the part of the defendant." The case was disposed of upon another question.

We are of the opinion that the ruling of this court should be affirmed. We do not think the rules of the company introduced by the plaintiff did more than declare the measure of duty which the defendant owes to its passengers. In Brittain v. Railroad Co., 88 N. C., 536; 43 Am. Rep., 749, Ruffin, J., says: "According to the uniform tendency of these adjudications, which we admit as authorities, the carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for his own or his servant's neglect in this particular, when, by the exercise of proper care, the acts of violence might have been foreseen and prevented; and while not required to furnish a police force sufficient to overcome all force when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter, which might reasonably be expected to occur under the circumstances of the case and the condition of the parties." This rule we find fully sustained by the decisions of other courts and the text-books.

In Putnam v. Broadway & Seventh Ave. R. Co., 55 N. Y., 108; 14 Am. Rep., 190, it is said: "A railroad company has the power of refusing to receive as a passenger or to expel any one who is drunk, disorderly or riotous, or who so demeans himself as to endanger the safety or interfere with the reasonable comfort and convenience of the other passengers, and may exert all necessary power and means to eject from the cars any one so imperiling the safety, or annoying others; and this police power the conductor or other servant of the company in charge of the car or train is bound to exercise

FRITZ V. RAILWAY CO.

with all the means he can command, whenever occasion requires. If this duty is neglected without good cause and a passenger receives injury, which might have been reasonably anticipated or naturally expected from one who is improperly received or permitted to continue as a passenger, the carrier is responsible."

The Supreme Court of Iowa in Felton v. Railroad Co., 69 Iowa, 577, held that, upon a finding by the jury that the defendant ought not reasonably to have anticipated that an assault would be committed on the deceased the defendant was not liable.

In Flint v. Transportation Co., 34 Conn., 554, it is held that "Carriers of passengers for hire are bound to exercise the utmost vigilance and care in maintaining order and guarding those they transport against violence from whatever source arising, which might be reasonably anticipated, or naturally expected to occur, in view of all the circumstances, and of the number and character of persons on board."

There is no controversy in this case in regard to the relation which the plaintiff occupied toward the defendant. She was a passenger, having paid her fare, and at the time of the injury the contract of carriage had not come to an end. She was, therefore, entitled to demand of the defendant the degree of care for her protection prescribed by the law and the rules of the company. In the very excellent brief filed by the plaintiff's counsel, many authorities are cited to establish this proposition. They also cite authorities to the effect that if the conductor was negligent and, by reason of such negligence, a third party, as in this case, a fellow passenger, injured the plaintiff, the defendant would be liable. The question which lies at the threshold of this case is whether there is any negligence on the part of the conductor. It will be observed that in the cases cited the question of liability is

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made to turn upon a neglect of duty, as do all cases of negligence. The right to recover is dependent upon a failure on the part of the conductor to maintain such care as would prevent an injury which could be reasonably anticipated or, as said by Justice Ruffin in Brittain's case, supra, could have been foreseen and prevented." The plaintiff here testifies expressly that the man who injured her was coming very rapidly, and that, "you could not have anticipated that he was going to hit you, and it could not have been reasonably anticipated." Applying the principle which is to govern the case, this language of the plaintiff relieves the defendant of any actionable neglect. Her statement is sustained by the circumstances surrounding the transaction. She said in reply to a question, that she had no reason to believe that this man was going to hit her. Her father, standing within three paces of the conductor and seeing the man coming, did not anticipate any trouble. The man had a right as a passenger, seeking to board the train, to go to the step and, so soon as he could safely do so, enter the car. The fact that he was coming rapidly was not calculated, in view of the conduct of men under such circumstances, to arouse in the conductor any apprehension that he would attempt to board the car in a rough and violent manner. He made no such impression on the plaintiff or her father. If the conductor had stopped him before he reached the step, the defendant would have been liable in an action for damages.

We do not intend to relax in the slightest degree the rules of the company or the high degree of care which the law requires of conductors in protecting their passengers. But we do not think that, in view of this testimony, these rules applied to the conductor's conduct show any negligence on his part. The general rule is that whenever a carrier through its agents or servants knows or has opportunity to know of a threatened injury or might have reasonably antici

FRITZ v. RAILWAY CO.

pated the injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable.

We have carefully examined the case of Sheridan v. B. & N. Ry. Co., 36 N. Y., 39; 93 Am. Dec., 490, cited by the plaintiff's counsel. There, the plaintiff's intestate, a child of nine years, was compelled by the conductor of a crowded. railroad car to stand upon the platform, and while there was thrown from the car by the hasty and careless exit of another passenger. The company was properly held liable, Mr. Justice Hunt saying: "For the present we are to assume that the deceased was upon the platform by the express requirement of the defendants and against his own remonstrance, properly, so far as the defendants are concerned. If by the motion of the cars he had been thrown from his dangerous position, or by the continued pressure of the large crowd which the defendants had permitted upon their cars, he had been pushed from his standing place, the defendants would have been liable. It does not alter this liability that the the wrong of a third party concurred with their own in producing the injury. It may well be that the young man was not justified in rushing through the crowd and in aiding in throwing the deceased from the cars; but this does not relieve the defendant's wrong. If they had not removed the deceased from his seat and compelled him to stand upon the platform, he would have been unaffected by this illegal act of the young man. It was his violence, concurring with the defendant's illegal conduct in overcrowding their cars and in placing the deceased upon the platform, that produced the disastrous result." The wrongful act of the defendant in that case was in compelling the plaintiff's intestate to stand upon the platform. In our case there was no wrongful act in respect to the plaintiff's being upon the second step in alighting from the car. There was no suggestion of over