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in question must, however, be conflicting,12 or the testimony of the opposing witnesses must be based on the customary action in regard to the fact in question, to render such evidence admissible.13 A custom or practice established by the carrier itself is not admissible to disprove negligence on its part, but a general custom among other carriers, under similar conditions, may be so admitted.15 Evidence of a custom as to what was done with passengers carried beyond their destination is not admissible, especially where there is no evidence that the passenger, injured in returning to his destination after having been carried past it, was informed of the custom,17 or that the carrier offered to conform therewith.18

16

Evidence of the customary action of passengers may be admissible as affecting the duty of the carrier to take the proper precautions for their safety;19 but such evidence must show more than the occasional practice of a single passenger.

20

of conduct may be admissible to show negligence on its part.21

Usual course for considerable time without accident. Evidence of a course of conduct for a considerable time without accident is admissible to show that such course of conduct was not negligent.22

Right of way at crossings. Evidence of a custom between two street railroad companies of giving one company the right of way at crossings is admissible, in an action against both companies for injuries received in a collision at a crossing, to show which company was guilty of the greater negligence.23

[§ 1449] (13) Rules of Carrier. A rule of a carrier, adopted for the government of the conduct of passengers or of its employees in the operation of its trains, and which does not require more than the law requires of the carrier with respect to the matters covered by such rules, is admissible in evidence on the question of the carrier's negligence,24

and not imprudent was inadmissible. Lawrence V. Hudson, 12 Heisk. (Tenn.) 671.

12. Atlanta, etc., R. Co. v. Holcombe, 88 Ga. 9, 13 SE 751; Louisville, etc., R. Co. v. Berry, 88 Ky. 222, 10 SW 472, 10 KyL 791, 21 AmSR 329; Merrill v. Metropolitan St. R. Co., 73 App. Div. 401, 77 NYS 122.

A departure by the carrier from its usual course that it was the uniform custom of defendant's operatives to stop their cars on the opposite side of the street was admissible. Moffitt V. Connecticut Co., 86 Conn. 527, 86 A 16. (2) It is competent, in connection with a charge of negligence, to establish a custom of the defendant traction company to stop its cars at a particular crossing at the near side of the street rather than at the far side, which is the general rule. Chicago City R. Co. v. Lowitz, 119 Ill. A. 360 [aff 218 Ill. 24, 75 NE 755]. (3) Where, on an issue as to whether stopping a train at a certain station was in violation of the company's rule, defendant introduced its time-table to show that it did not stop there, plaintiff could show in rebuttal that trains frequently stopped there. Texas, etc., R. Co. v. Elliott, 22 Tex. Civ. A. 31. 54 SW 410.

[c] The absence of a custom to do that which ought to be done at the place and under the circumstances in question is immaterial, where the situation is unlike that pertaining to railroads generally. Blanchette v. Holyoke St. R. Co., 175 Mass. 51, 55 NE 481 (holding that, where an electric railroad ran through woods and fields by frequent curves, on a steep grade, and two cars were run rapidly, but two minutes apart, and an injury occurred by the first car stopping to adjust its trolley, and the rear car colliding with it. the situation was so unlike that of electric railroads generally, that evidence that it was not customary for the motorman to leave his post and go back and warn the rear car was properly excluded).

[d] Evidence not admissible.—(1) In an action for injuries sustained by exposure to the cold while in defendant's depot waiting for delayed trains, evidence of the custom of the depot agent to invite persons waiting for trains to come into the office when the weather was cold was not admissible as tending to show the state of weather at the times complained of by plaintiff, the office not being intended by defendant for a waiting room. Missouri, etc., R. Co. v. McCutcheon, 33 Tex. Civ. A. 557, 77 SW 232. (2) Defendant's custom to have a conductor on its cars is incompetent to show its negligence in failing to have one on the car at the time of plaintiff's accident. Gardner v. Detroit St. R. Co., 99 Mich. 182, 58 NW 49.

[e] Opinion evidence. In an action by a passenger in an omnibus, to recover for an injury resulting from the horses starting up while the reins were in the hands of a small boy, to whom the driver had delivered them while he was delivering a parcel, testimony of another driver that the act was customary

[a] Illustrations.-(1) Where an employee whose business it was to place a stool used for the purpose of assisting women passengers to enter the train was not produced or accounted for, there was no error in rejecting evidence that it was the custom and habit of the company to have the stool in its proper place up to the time of the starting of the train, there being positive evidence in behalf of plaintiff that it was out of place when he was injured, and only negative evidence to the contrary in behalf of defendant. Atlanta, etc., R. Co. v. Holcombe, 88 Ga. 9, 13 SE 751. (2) In an action for an injury to a boy about fourteen years old, alleged to have been caused by a defective platform, by reason of which he was thrown under a moving train and injured, it was held not competent for defendant to prove that the boy was in the habit of jumping on moving trains at that place and had been warned of the danger, the boy having testified positively that the injury was caused by his stepping on a rotten plank in the platform and being thrown under the train, and his statement being corroborated by convincing circumstances. Louisville, etc., R. Co. v. Berry, 88 Ky. 222, 10 SW 472, 10 KyL 791, 21 AmSR 329.

13. McDonald v. Chicago, etc., R. Co., 29 Iowa 170; Wentworth v. Eastern R. Co., 143 Mass. 248, 9 NE 563.

14. Maury v. Talmadge, 16 F. Cas. No. 9,315, 2 McLean 157; MacFeat v. Philadelphia, etc., R. Co., 21 Del. 52, 62 A 898.

15. Maury v. Talmadge, 16 F. Cas. No. 9,315, 2 McLean 157; Campbell v. Duluth, etc., R. Co., 107 Minn. 358, 120 NW 375, 22 LRANS 190. But see Cleveland v. New Jersey Steamboat Co., 5 Hun 523 [rev on other grounds 68 N. Y. 306] (holding that, in an action for damages caused by defendant's negligence in leaving open the gangway gate after the boat left its dock, a custom of others to be equally negligent is no defense).

16. Birmingham R., etc., Co. v. Seaborn, 168 Ala. 658. 53 S 241. 17. Birmingham R., etc., Co. V. Seaborn, 168 Ala. 658, 53 S 241. 18. Birmingham R., etc., Co. v. Seaborn, 168 Ala. 658, 53 S 241. 19. Ala.-McDonald v. Montgomery St. R. Co., 110 Ala. 161, 20 S 317. D. C.-Great Falls, etc., R. Co. v. Hill, 34 App. 304.

Ill.-North Chicago St. R. Co. v. Kaspers, 186 Ill. 246, 57 NE 849 [aff

85 Ill. A. 316]; Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 NE 713 [aff 68 Ill. A. 635]; Chicago Union Tract. Co. v. Kallberg, 107 Ill. A. 90. Mass.-Nichols v. Lynn, etc., R. Co., 168 Mass. 528, 47 NE 427.

N. Y.-Phillips v. Rensselaer, etc., R. Co., 57 Barb. 644 [rev on other grounds 49 N. Y. 177]; Brooks v. New York, etc., R. Co., 21 NYWkly Dig 464.

[a] Evidence inadmissible.-(1) In a suit for personal injuries sustained while alighting from a train, evidence that at the preceding station plaintiff got off the train and remained off until it started, and then boarded it while moving, is immaterial and inadmissible. Lake Erie, etc., R. Co. v. Morain, 36 Ill. A. 632 [aff 140 Ill. 117, 29 NE 869]. (2) In an action against a street railroad company by a passenger whose fingers were struck and injured by a trolley pole as she was pointing out of the open window of a car, it is not error to refuse to permit a witness for plaintiff to testify that in resting her arm on the crossbars of the window she followed the usual habit of the passengers of the car, where the injury was not caused by plaintiff's resting her arm on the crossbar. Chapman v. Capital Tract. Co., 37 App. (D. C.) 479.

20. Drake v. Pennsylvania R. Co., 137 Pa. 352, 20 A 994, 21 AmSR 883. 21. Chicago, etc., R. Co. v. Fisher, 31 Ill. A. 36.

22. Cleveland, etc., R. Co. v. Newell, 75 Ind. 542.

23. Howland v. Oakland Cons. St. R. Co., 110 Cal. 513, 42 P 983.

24. U. S.-Grady V. St. Louis Transit Co., 169 Fed. 400, 94 CCA 622; Frizzell v. Omaha St. R. Co., 124 Fed. 176, 59 CCA 382.

Ark.-Cleveland v. Pine Bluff, etc.. R. Co., 107 Ark. 93, 154 SW 191, 44 LRANS 687.

Conn. Moffitt V. Connecticut Co., 86 Conn. 527, 86 A 16.

Del.-Yates v. Philadelphia, etc., R. Co., 23 Del. 472, 82 A 27.

Ga. Atlanta Cons. St. R. Co. v. Bates, 103 Ga. 333, 30 SE 41.

Ill-Chicago City R. Co. v. Lowitz, 218 Ill. 24, 75 NE 755 [aff 119 Ill. A. 360].

Kan.-Southern Kansas R. Co. v. Pavey, 48 Kan. 452, 29 P 593. Md.-Baltimore, etc., R. Co. V. State, 81 Md. 371, 32 A 201.

Mass.-Larson v. Boston El. R. Co., 212 Mass. 262, 98 NE 1048; Crowley v. Boston El. R. Co., 204 Mass. 241, 90 NE 532; McDonough v. Boston El. R. Co., 191 Mass. 509, 78 NE 141.

N. Y.-Field v. New York City R. Co., 109 App. Div. 831, 96 NYS 457: Allen v. Dry-Dock, etc., R. Co., 2 NYS 738.

Okl.-Shawnee-Tecumseh Tract. Co. v. Wolland, 153 P 1189.

Tex. Boldt v. San Antonio Tract. Co., (Civ. A.) 148 SW 831; Texas

provided such rule is shown to have been in exist-
ence at the time of the accident,"
25 and that the
passenger had, or was chargeable with, notice
thereof.26
But it has been held that such a rule is
incompetent in behalf of the carrier;27 and in some
jurisdictions it has been held that a rule intended
for the guidance of employees is not admissible to
show either due care or negligence toward pas-
sengers.28 Where the rule requires more than the
law requires, or where it requires the performance
of acts which the law does not recognize as a duty

Tract. Co. v. Hanson, (Clv. A.) 143 SW 214.

Wyo.-Chicago, etc., R. Co. V. Lampman, 18 Wyo. 106, 104 P 533, 537, 25 LRANS 217, AnnCas1912C 788.

[a] As admissions.-The printed rules of a railroad company as to the movements of trains, "for the government and information of employes only," are admissible in actions for personal injuries as admissions by the company. Lake Shore, etc., R. Co. v. Ward, 35 Ill. A. 423 [aff 135 Ill. 511, 26 NE 520].

[b] Rule requiring stopping at particular place. The rule of a carrier, which has been enforced, as to stopping at a particular place, may be shown when there is conflicting evidence as to whether the carrier's street car did stop at the place in question. Nassau Electric R. Co. v. Corliss, 126 Fed. 355, 61 CCA 257; Moffitt v. Connecticut Co., 86 Conn. 527, 86 A 16; Chicago City R. Co. v. Lowitz, 218 Ill. 24, 75 NE 755 [aff 119 Ill. A. 360].

[c] Rule giving right of way.Evidence of a rule by which the cars of one street railroad company had a right of way at a street intersection. over the cars of another company is admissible in an action for injuries to a passenger in a collision between the cars of such companies at that place. Schmidt v. Chicago City R. Co., 239 Ill. 494, 88 NE 275.

[d] A rule which is irrelevant to the matters in issue (1) should not be admitted. Illinois Cent. R. Co. v. Proctor, 89 SW 714, 28 KyL 598: Hardin v. Ft. Worth, etc.. R. Co., 49 Tex. Civ. A. 184, 108 SW 490. (2) It is reversible error to permit plaintiff to introduce in evidence a rule of the company having_no_relation to the question involved. Deutschmann v. Third Ave. R. Co., 78 App. Div. 413, 79 NYS 1043. (3) Where two passengers on defendant's boat engaged in a quarrel over a game of cards, which ultimately resulted in a shooting which injured plaintiff, an innocent third party, evidence that the game was for money, and that gambling was prohibited on the boat by defendant's rules, was not admissible, although the captain may have had knowledge that the rule was being violated, as it could not be said that the shooting was a necessary or probable result of the gambling. Tall v. Baltimore Steam Packet Co., 90 Md. 248, 44 A 1007, 47 LRA 120.

[e] Abrogation of rule. Where the company sued had owned the railroad for only five years, evidence of what was done during that time. alone was admissible to show abrogation of a rule forbidding the use of hand cars for the carriage of passengers. Cleveland v. Pine Bluff, etc., R. Co., 107 Ark. 93, 154 SW 191, 44 LRANS 687.

25. McDonald v. Montgomery St. R. Co., 110 Ala. 161. 20 S 317; Prescott, etc., R. Co. v. Hopkins, 122 Ark. 168, 182 SW 551; Schmidt v. Chicago City R. Co., 239 Ill. 494, 88 NE 275 [aff 144 11. A. 512].

[a] Error cured.-In an action against a street railroad company for injuries, where a witness had been allowed to testify as to a public rule to ring the bell to stop the car at crossings, the error was cured by showing subsequently that such was the rule at the time plaintiff was in

devolving on the carrier, it is inadmissible.29

[ 1450] c. Weight and Sufficiency of Evidence -(1) In General. The rules of evidence which govern in civil actions generally control questions involving the weight and sufficiency of the evidence on all matters arising in an action by a passenger against a carrier for personal injuries.3 Thus in order to sustain a recovery all the facts constituting plaintiff's cause of action must be established by a preponderance of the evidence,32 including the fact of the relation of carrier and passenger at the time

jured. McDonald v. Montgomery St. R. Co., 110 Ala. 161, 20 S 317. 26. Ark.-Prescott, etc., R. Co. v. Hopkins, 122 Ark. 168, 182 SW 551. Del.-Yates v. Philadelphia, etc., R. Co., 23 Del. 472, 82 A 27. Ill. Illinois Cent. R. Co. v. Downs, 122 III. A. 545. V. Cedar Rapids, etc., R. Co., 157 Iowa 655, 139 NW 165, AnnCas1915C 905 and note.

Iowa.-Hoffman

Md.-United R., etc., Co. v. Hertel, 97 Md. 382, 55 A 428. Va.-Virginia R., etc., Co. v. Godsey, 117 Va. 167, 83 SE 1072.

Wyo.-Chicago, etc.. R. Co. V. Lampman, 18 Wyo. 106, 104 P 533, 25 LRANS 217, AnnCas1912C 788. Compare Boldt V. San Antonio Tract. Co., (Tex. Civ. A.) 148 SW 831 (holding that, in a street car passenger's action for injuries to his arm by being struck by another car going around a curve, the company's rule prohibiting cars from passing on curves was admissible as tending to show negligence, irrespective of whether plaintiff knew of the rule).

[a] Rules affecting the conduct of passengers are not competent against a passenger in an action for personal injuries, in the absence of evidence of knowledge thereof by him or by the public. Merrill v. Michigan Cent. R. Co., 158 Ill. A. 38.

[b] Evidence of knowledge.Where an employee of a lumber company was killed while riding on the train of a subsidiary railroad, evidence that he stated that he was going to ride on the train, but that he might have to fight his superior in order so to do, is admissible to show that he knew the rules prohibiting riding on such train. Prescott, etc., R. Co. v. Hopkins, 122 Ark. 168, 182 SW 551.

27. West Chicago St. R. Co. V. Brown, 112 III. A. 351.

28. Louisville, etc., R. Co. v. Dyer, 152 Ky. 264, 153 SW 194, 48 LRANS 816; Becker v. Buffalo, etc., Tract. Co., 52 Pa. Super, 93.

[a] Reason for rule.-"The care that employes of railroad companies must exercise towards the general public is to be determined by the principles of law, and not by the rules adopted by the company for the guidance of employees. The rules of the company are not, therefore, admissible for the purpose of showing either proper care or negligence on the part of the company's employees." Louisville, etc., R. Co. v. Dyer, 152 Ky. 264, 266, 153 SW 194, 48 LRANS 816.

29. Chicago, etc., R. Co. v. Lampman, 18 Wyo. 106, 104 P 533, 25 LRA NS 217, AnnCas1912C 788.

30. Cross references: Contributory negligence see infra § 1519.

Question for court or jury see infra $ 1454.

Res ipsa loquitur see supra §§ 14261434.

31. See generally Evidence [17 Cyc 753]. And see Chicago, etc., R. Co. v. Eddy, 228 Fed. 643, 143 CCA 165; Taylor v. Pennsylvania Co., 50 Fed. 755; Davis v. Boston El. R. Co., 222 Mass. 475. 111 NE 174; Richmond v. Missouri Pac. R. Co., 162 Mo. A. 422, 144 SW 168; Kirkpatrick v. Metropolitan St. R. Co., 161 Mo. A. 515, 143 SW 865; Carpenter v. Trinity, etc., R. Co., (Tex. Civ. A.) 146 SW

[ocr errors]

31

363; Houston, etc., R. Co. v. Johnson, (Tex. Civ. A.) 103 SW 239.

[a] Evidence held sufficient: (1) To make a prima facie case for plaintiff. Ellis v. Chicago R. Co., 187 Ill. A. 461; Schwanenfeldt v. Metropolitan St. R. Co., 187 Mo. A. 588, 174 SW 143. (2) To show that a company whose route had been obstructed provided and pointed out a way for passengers around the obstruction to a point where the railroad was continued, and invited them to pass over it. Powers v. Old Colony St. R. Co., 201 Mass. 66, 87 NE 192. (3) To show that the railroad company required passengers putting on baggage at stations where there was no agent to go to the baggage coach and make arrangements relating to the baggage after boarding the train. Creason v. St. Louis, etc., R. Co., 149 Mo. A. 223, 130 SW 445. (4) To authorize an inference that the passenger fell down a stairway at the platform while on his way to take a train. Vosler v. Delaware, etc., R. Co., 77 N. J. L. 727, 73 A 483. (5) To show that the ticket agent had smallpox and knew it when the passenger bought tickets from him. Missouri, etc., R. Co. v. Raney, 44 Tex. Civ. A. 517, 99 SW 589.

[b] Evidence held insufficient: (1) To show that, at the time of the killing of a passenger at a railroad station, deceased was being escorted across the tracks by an agent of defendant. Dieckmann v. Chicago, etc., R. Co., (Iowa) 105 NW 526. (2) To show that the accident was unavoidable. Brannon v. Yazoo, etc., R. Co., 129 La. 916, 57 S 172.

32. Ala.-Louisville, etc., R. Co. v. Jones, 83 Ala. 376, 3 S 902.

Colo.-Denver, etc., R. Co. v. Gunning, 33 Colo. 280, 80 P 727.

Ga.-Mitchell v. Western, etc., R. Co., 30 Ga. 22.

Ill. Keck v. Calumut, etc., R. Co., 156 Ill. A. 402.

N. Y.-Mieuli v. New York, etc., R. Co.. 136 App. Div. 373, 120 NYS 1078. Tex.-Domenico v. El Paso Electric R. Co., (Civ. A.) 90 SW 60; St. Louis, etc., R. Co. v. Edwards, 3 Tex. A. Civ. Cas. § 342.

[a] Evidence held suficient to sustain a recovery.-(1) New York, etc., R. Co. v. Halstead, 218 Fed. 455, 133 CCA 1 (passenger riding in freight car); St. Louis, etc., R. Co. v. Sandidge, 85 Ark. 589, 109 SW 551; Froeming v. Stockton Electric R. Co., 171 Cal. 401, 153 P 712; Wrightsville, etc., R. Co. v. Joiner, 136 Ga. 149, 71 SE 126; Tallulah Falls R. Co. v. Harris, 129 Ga. 305, 58 SE 838; Southern R. Co. v. Dean, 128 Ga. 366, 57 SE 702; Georgia R., etc., Co. v. Tice, 124 Ga. 459. 52 SE 916, 4 AnnCas 200; East Tennessee. etc., R. Co. V. Hughes, 97 Ga. 330, 22 SE 397; Savannah Electric Co. v. Fosterling. 16 Ga. A. 196, 84 SE 976; Georgia R., etc., Co. v. Cole, 1 Ga. A. 33, 57 SE 1026; Monahan v. Chicago City R. Co., 185 Ill. A. 207; Lakin v. South Side El. R. Co.. 178 Ill. A. 176; Neff v. Chicago City R. Co.. 177 Ill. A. 152; Ward v. Northern Michigan Transp. Co., 175 Ill. A. 598; Lietz v. Chicago City R. Co.. 162 11. A. 328: Doll v. Chicago Cons. Tract. Co., 153 Ill. A. 442; Louisville. etc., Ferry Co. v. Nolan, 135 Ind. 60, 34 NE 710; Van Vranken v. Kansas City El. R. Co., 84 Kan. 287, 114 P 202; Fuqua v. St. Louis,

sons liable for the injuries,34 but such facts need

invitation of defendant's conductor. Miller v. Pacific Electric R. Co., 9 Cal. 17, 145 P 1023. (13) To support a finding that a person riding in a passenger elevator in a building was in the elevator on his way to the office of a physician in the building to inquire whether the physician wanted him for an errand, and that he did not ride in the elevator at the time of the accident without any apparent business. Ferguson v. Truax, 132 Wis. 478, 110 NW 395, 111 NW 657, 112 NW 513, 14 LRA NS 350, 13 AnnCas 1092.

of the accident,33 and as to the companies or peretc., R. Co., 82 Kan. 315, 108 P 108, | To show that the person injured was station on the express or implied 20 AnnCas 115; Chesapeake, etc., R. Co. v. Morgan, 129 Ky. 731, 112 SW 859; Illinois Cent. R. Co. v. Colly, 86 SW 536, 27 KyL 730 (passenger's uncorroborated evidence); Oxendine v. Louisiana R., etc., Co., 119 La. 191, 43 S 1003; Grignon v. Minneapolis, etc., R. Co., 130 Minn. 36, 153 NW 117; Doran v. Chicago, etc., R. Co., 128 Minn. 193, 150 NW 800; Newbury v. Great Northern R. Co., 109 Minn. 113, 122 NW 1117; McGuire v. Great Northern R. Co., 106 Minn. 192, 118 NW 556 (passenger on freight cars); Ahern v. Minneapolis St. R. Co., 102 Minn. 435, 113 NW 1019; Crandall v. Minneapolis, etc., R. Co., 96 Minn. 434, 105 NE 185, 113 AmSR 653, 2 LRANS 645; Stark v. Chicago, etc., R. Co., 179 Mo. A. 225, 166 SW 850; Maier v. Metropolitan St. R. Co., 176 Mo. A. 29, 162 SW 1041; Previsich v. Butte Electric R. Co., 47 Mont. 170, 131 P 25; Trouzzo v. Sutherland, 150 App. Div. 756, 135 NYS 184; Baker v. New York, etc., R. Co., 28 App. Div. 316, 50 NYS 999; Graham v. New York City R. Co., 54 Misc. 566, 104 NYS 869; Bellinger V. Broadhead, 52 Misc. 57, 102 NYS 381; Kersten v. Great Northern R. Co., 28 N. D. 3, 147 NW 787; Chicago, etc., R. Co. v. Bentley, 43 Okl. 469, 143 P 179; Atchison, etc., R. Co. v. Calhoun, 18 Okl. 75, 89 P 207, 11 AnnCas 681; Devroe v. Portland R., etc., Co., 64 Or. 547, 131 P 304; Harper v. Pittsburg, etc., R. Co., 219 Pa. 368, 68 A 831; Powelson v. United Tract. Co., 216 Pa. 583, 66 A 78; Oberndorf v. Philadelphia, etc., Co., 53 Pa. Super. 74; Beamer v. Philadelphia, etc., R. Co., 50 Pa. Super. 211; Gyles v. Southern R. Co., 79 S. C. 176, 60 SE 433; Houston, etc., R. Co. v. Fox, (Tex. Civ. A.) 156 SW 922; Vicksburg, etc., R. Co. v. Jackson, (Tex. Civ. A.) 133 SW 925; Ft. Worth, etc., R. Co. v. Walker, 48 Tex. Civ. A. 86, 106 SW 400; Texas, etc., R. Co. v. Bump, 43 Tex. Civ. A. 297, 95 SW 29 (passenger on freight train); Richmond, etc., A. Co. V. Scott, 88 Va. 958, 14 SE 763, 16 LRA 91. (2) For injuries to a passenger at a station. Georgia R., etc., Co. v. Adams, 127 Ga. 408, 56 SE 409. (3) For injuries caused by a train passing between plaintiff's train and the station. Denver, etc., R. Co. v. Hodgson, 18 Colo. 117, 31 P 954. (4) For injuries to an infant street car passenger. James v. Oakland Tract. Co., 10 Cal. A. 785, 103 P 1082. For injuries received by an elevator passenger. Cooper V. Century Realty Co., 224 Mo. 709, 123 SW 848; Kelly v. Lewis Inv. Co., 66 Or. 1, 133 P 826, AnnCas1915B 568.

(5)

[b] Evidence held insufficient to sustain a recovery.-Sacco V. New Orleans R., etc., Co., 117 La. 651, 42 S 198; Rogers v. Ford, 188 Mich. 62, 153 NW 1074; Mageau v. Great Northern R. Co., 106 Minn. 375, 119 NW 200; Omaha St. R. Co. v. Baker, 44 Nebr. 511, 63 NW 25; MacReynolds v. Coney Island, etc., R. Co., 170 App. Div. 314, 155 NYS 655; Reiss v. Joline, 69 Misc. 349, 125 NYS 765; Graham v. New York City R. Co., 54 Misc. 566, 104 NYS 869; Van Wagner v. Metropolitan St. R. Co., 26 Misc. 796, 56 NYS 215; Taylor v. Atlantic Coast Line R. Co., 78 S. C. 552, 59 SE 641; Norfolk, etc., R. Co. v. Rhodes, 109 Va. 176, 63 SE 445; Peat v. Chicago, etc., R. Co., 128 Wis. 86, 107 NW 355.

33. Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 NE 1087 [aff 102 Ill. A. 202]; Chicago, etc., Tract. Co. v. Lowenrosen, 125 Ill. A. 194 [aff 222 111. 506, 78 NE 813]; Chicago, etc.. R. Co. v. Hostetter, 171 Ind. 465, 84 NE 534 [rev_(A.) 82 NE 1134]; Jones v. New York Cent., etc., R. Co., 156 N. Y. 187. 50 NE 856, 41 LRA 490; Crawleigh v. Galveston, etc., R. Co., 28 Tex. Civ. A. 260. 67 SW 140.

[a] Evidence held sufficient: [10 C.J.--67]

(1)

[b] Evidence held insufficient: (1) To show that the person injured was a passenger at the time of the accident. Alabama City, etc., R. Co. v. Bessiere, 190 Ala. 59, 66 S 805; Sessions v. Southern Pac. Co., 159 Cal. 599, 114 P 982; Lehnick v. Metropolitan St. R. Co., 118 Mo. A. 611, 94 SW 996; Hendrickson v. Grays Harbor R., etc., Co., 88 Wash. 145, 152 P 992; Kroeger v. Seattle Electric Co., 37 Wash. 544, 79 P 1115. (2) To show that the railroad company consented to the carriage of passengers on its hand cars, or that its officers knew they were so used. Cleveland v. Pine Bluff, Arkansas R. Co., 107 Ark. 93, 154 SW 191, 44 LRANS 687. (3) To show that the engineer invited plaintiff to get on his train. Connaughton v. Brooklyn, etc., R. Co., 13 Misc. 401, 34 NYS 243. (4) To show that the person injured was invited to board a slowly moving street car. Howard v. Forty-Second St., etc., R. Co., 125 App. Div. 776, 110 NYS 125. (5) To support a finding that at the time of the accident in which decedent was killed decedent was on defendant's train in the discharge of duties pertaining to the railroad mail service. Schuyler v. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025]. (6) To show that a pass on which the person injured was riding was not issued as a mere gratuity. Boering v. Chesapeake, etc., R. Co., 20 App. (D. C.) 500 [aff 193 U. S. 442, 24 SCt 515, 48 J. ed. 742]. (7) To show that plaintiff was a trespasser on the car, for the reason that she was riding on a transfer which was claimed to have been invalid. Ellis v. Chicago R. Co., 187

a passenger at the time of the acci-
dent. Birmingham R., etc., Co. v.
McCurdy, 172 Ala. 488, 55 S 616
(evidence held to justify a finding
that plaintiff was a passenger at
the time, in view of the fact that
there is no presumption that she was
wrongfully on the car); St. Louis,
etc., R. Co. v. Pate, 90 Ark. 135, 118
SW 260; Thorne v. California Stage
Co., 6 Cal. 232; Bond v. San Fran-
cisco United R. Co., 24 Cal. A. 157,
140 P 982; Coburn v. Moline, etc.,
R. Co., 243 Ill. 448, 90 NE 741,
134 AmSR 377 [aff 149 Ill. A. 132];
Hickey v. Chicago City R. Co., 148
Ill. A. 197; Chicago Union Tract.
Co. v. O'Brien, 117 Ill. A. 183 [rev
on other grounds 219 Ill. 303, 76
NE 341]; Malott v. Weston, 51 Ind.
A. 572, 98 NE 127; Indiana Union
Tract. Co. v. Smalley, 44 Ind. A. 172,
88 NE 867; Illinois Cent. R. Co. v.
Dallas, 150 Ky. 442, 150 SW 536;
Marshall v. Boston El. R. Co., 203
Mass. 40, 88 NE 1094; Copson v. New
York, etc., Co., 171 Mass. 233, 50
NE 613; Stakebake v. Union Pać. R.
Co., (Mo. A.) 185 SW 1166; Lind-
say V. St. Louis, etc., R. Co.,
(Mo. A.) 178 SW 276; Demann V.
Eighth Ave. R. Co., 10 Misc. 191,
30 NYS 926; Knox v. Robbins, (Tex.
Civ. A.) 151 SW 1134; St. Louis
Southwestern R. Co. V. Turner
(Tex. Civ. A.) 84 SW 1094; Lugner
v. Milwaukee Electric R., etc., Co..
146 Wis. 175, 131 NW 342. (2) To
show that plaintiff before attempting
to board a train was given no op-
portunity to purchase a ticket. St.
Louis, etc., R. Co. V. Green, 110
Ark. 232, 161 SW 148. (3) To show
acceptance of plaintiff's offer to be-
come a passenger, although the
place was not one where passengers
were usually received. Nolan V.
Metropolitan, St. R. Co., 250 Mo. 602,
157 SW 637. (4) To establish a
custom of caretakers to ride in the
car with shipments of stock and
the train master's knowledge
thereof. St. Louis, etc., R. Co. V.
Loyd, 109 Ark. 579, 160 SW 851.
(5) To justify a finding that the
conductor saw the caretaker riding
in the car with stock and acquiesced
in his doing so. St. Louis, etc., R.
Co. v. Loyd, supra. (6) To show
that one killed while being carried
in charge of a shipment of cattle
was actually placed in charge of
the cattle by the shipper. Weaver
v. Ann. Arbor R. Co., 139 Mich. 590,
102 NW 1037, 5 AnnCas 764. (7)
To show that a carrier expressly or
impliedly invited passengers
to
board its train while being made up.
Wise v. Wabash R. Co., 135 Mo. A.
230, 115 SW 452. (8) To show that
the injuries were received while de-
ceased was employed by an express
company and rightfully on the train,
and that he was not injured while
employed by defendant railroad
company in interstate commerce,
within Federal Employers Liability
Act. Missouri, etc., R. Co. v. West,
38 Okl. 581, 134 P 655. (9) To war-
rant the presumption that a rule pro-
hibiting the carriage of passengers
on freight trains had been abro-
gated. Missouri, etc., R. Co. V.
Huff, (Tex. Civ. A.) 78 SW 249
[rev on other grounds 98 Tex. 110,
81 SW 525]. (10) To show that
plaintiff was not injured while a
passenger on defendant's road.
Do-
menico v. El Paso Electric R. Co.,
(Tex. Civ. A.) 90 SW 60. (11) To
show that passengers using a path-
way across a railroad right of way
did not use it on the invitation of
the company, and that persons using
it could not recover for injuries sus-
tained in consequence of the defec-tain
tive condition of the pathway. Ala- ant. Chicago, etc.. R. Co. v. Newell,
bama Great Southern R. Co. v. God-
frey, 156 Ala. 202, 47 S 185, 130 Am
SR 76. (12) To warrant a finding
that the passenger left the car and
walked back over the track to the

Ill. A. 461.

[c] Failure to disprove relation not an admission.-Where defendant pleads the general issue, and in its defense questions the relationship of carrier and passenger, a failure to disprove it directly does not constitute an admission. Carroll v. Chicago City R. Co., 180 Ill. A. 309.

[d] Failure to offer transfer in evidence.-Where plaintiff was injured by the fall of a trolley pole while he was passing from one street car to another at a junction point, and his evidence that he had a transfer, and that of his son that a transfer was taken from his pocket when he was brought home after the injury, was not contradicted, the fact that the transfer itself was not offered in evidence did not render the proof as to plaintiff's status as a passenger insufficient. Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 NË 1087 [aff 102 III. A. 202].

34. Colorado Springs, etc., R. Co. V. Petit, 37 Colo. 326, 86 P 121; Springfield Cons. R. Co. v. Hoeffner, 175 III. 634. 51 NE 884 [aff 71 Ill. A. 162]: Wylde v. Northern R. Co., 53 N. Y. 156, 14 AbbPrNS 213; Kunzmann V. New York, etc., R. Co., 6 Misc. 440. 27 NYS 132.

[a] Evidence held sufficient: (1) To establish the ownership of a cerstation and tracks by defend

113 Ill. A. 263 [aff 212 111. 332, 72 NE 416]. (2) To show that the car causing the injury was owned or operated by defendant. Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 NE

not be established beyond all doubt.35

38

by circumstantial evidence; direct or positive evidence is not necessary.3 39 But to sustain a recovery, such evidence must be sufficient to prove the essential facts constituting the negligence relied on,* and this evidence must consist of some reasonable evidence of well defined acts of negligence. A mere probability or possibility that some one was

Co..

35. Louisville, etc.. R. Co. V. Jones, 83 Ala. 376, 3 S 902. See also supra notes 32-34. 36. See also generally Negligence [29 Cyc 621 et seq].

[§ 1451] (2) Negligence Generally; Proximate Cause. Negligence on the part of defendant, or its employees, must be shown by a preponderance of the evidence; 37 but proof beyond a reasonable doubt is not required." Like any other fact, defendant's negligence may be proved or disproved 1087 [aff 102 Ill. A. 202]; Indiana | Agnew v. Metropolitan St. R. Union Tract. Co. v. Jacobs, 167 Ind. 178 Mo. A. 119, 165 SW 1110. (2) 85, 78 NE 325; Winona Interurban R. In an action for injuries to a passenCo. v. Williard, 54 Ind. A. 472, 101 ger while attempting to board a NE 1022; Cleveland, etc., R. Co. v. street car, slight evidence in support Colson, 51 Ind. A. 225, 99 NE 433; of the allegations as to defendant's Chaffe V. Cons. R. Co., 196 Mass. ownership or operation of the car at 484, 82 NE 497; Agnew v. Metro- the time of the injury is sufficient politan St. R. Co., 178 Mo. A. 119, where it is not combated, and, ex165 SW 1110; Reidman v. Brooklyn, cept for the general denial, there is etc., R. Co., 28 App. Div. 540, 51 no intimation that defendant resists NYS 196. (3) Where a passenger the claim on the ground that it was suing for injuries sustained while not the operator of the car. Reisenalighting from a car shows that de- leiter v. St. Louis United R. Co., 155 fendant company's name was on the Mo. A. 89, 134 SW 11. car, and the motorman testifies that he was working for the company, the proof prima facie shows that the company was operating the car. Baermann v. Chicago, etc., Electric R. Co., 153 Wis. 235, 140 NW 1119. (4) The evidence is sufficient to show that defendant was the carrier, where it appears that plaintiff purchased her ticket from defendant, and that the car in which she was riding had defendant's name on it. Kunzmann v. New York, etc., R. Co., 8 Misc. 689, 29 NYS 327. (5) Where, in an action for an assault on a passenger, defendant street railroad company appeared, answered, and made defense, admitting that at the time of the accident it was engaged in hauling passengers for hire in the city in question, and the evidence showed the occurrence to have taken place in one of the streets in such city, and that plaintiff was ejected with force from one of the "company's" cars by one of the "company's" employees, the jury were justified in finding that defendant was the "company" referred to. Citizens' St. R. Co. v. Clark, 33 Ind. A. 190, 71 NE 53, 104 AmSR 249.

[b] Evidence held insufficient: (1) To show that defendants, two carriers, were joint tort-feasors or individually negligent. Schoenfeld V. Pennsylvania R. Co., 55 Pa. Super. 577. (2) Where, in an action against a street railroad for injury, defendant answered by general denial, and there was no evidence, positive or circumstantial, that defendant owned or operated the road or car on which plaintiff was a passenger, a judgment in her favor was error. Indianapolis St. R. Co. v. Lawn, 30 Ind. A. 515, 66 NE 508. (3) Where that the only evidence defendant operated the cars on the line on which plaintiff was injured is a transfer slip bearing defendant's name, which transfer slip defendant's superintendent testifies was issued by another railroad company, and not by defendant, plaintiff is not entitled to recover. Dista v. Westchester Electric R. Co., 103 NYS 738. (4) Where there was no evidence in an action by a passenger against a street railroad company for injuries that defendant owned or operated the road at the place where plaintiff was hurt, except a map by the railroad company which designated the railroad by name, and there was no evidence as to the existence of defendant corporation, or that it owned or operated any railroad, and the engineer making the map testified that certain lines designated the street railroad tracks, a judgment in favor of plaintiff would be reversed. Citizens' St. R. Co. v. Stockdell, 159 Ind. 25, 62 NE 21.

[c] Slight evidence of defendant's ownership or operation (1) of the car on which plaintiff was a passenger when injured may be sufficient where this is alleged and treated as proved.

37. Little Rock, etc., R. Co. v. Harrell, 58 Ark. 454, 25 SW 117. Boucher v. Boston, etc., R. Co., 76 N. H. 91, 79 A 993, 34 LRANS 728, AnnCas1912B 847; Segelman v. Interborough Rapid Transit R. Co., 112 NYS 1068.

[a] Evidence held sufficient to show negligence.—(1) Seaboard Air Line R. Co. v. Standifier, 190 Ala. 260, 67 S 391; Arkansas Cent. R. Co. v. Janson, 90 Ark. 494, 119 SW 648; St. Louis, etc., R. Co. v. Taylor, 74 Ark. 31, 84 SW 1035; Pensacola Electric Co. v. Alexander, 58 Fla. 337, 50 S 673; Hobson v. St. Louis, etc., R. Co., 180 II. A. 84; Louisville, etc., R. Co. v. Ashley, 169 Ky. 330, 183 SW 921, LRA1916E 763; Tracey v. Boston, etc., St. R. Co., 204 Mass. 13, 90 NE 416; Kuhlen v. Boston, etc., St. R. Co., 193 Mass. 341, 79 NE 815, 118 AmSR 516, 7 LRANS 729; Moss v. Detroit. etc., R. Co., 182 Mich. 40, 148 NW 204; Gerlach v. Detroit United R. Co., 171 Mich. 474, 137 NW 256; Grignon v. Minneapolis, etc., R. Co., 130 Minn. 36, 153 NW 117 (passenger' on freight train); Simonds v. Minneapolis, etc., R. Co., 87 Minn. 408, 92 NW 409 (as to passenger on mixed train); Miller v. Southern Pac. R. Co., 266 Mo. 19, 178 SW 885; Berry v. Missouri Pac. R. Co., 124 Mo. 223, 25 SW 229; Willmott V. Corrigan Cons. St. R. Co., 106 Mo. 535, 16 SW 500, 17 SW 490; Pidgeon v. St. Louis United R. Co., 154 Mo. A. 20,

133 SW 130;

Chicago, etc., R. Co. v. Troyer, 70 Nebr. 287, 97 NW 308, 70 Nebr. 293, 103 NW 680 (as to shipper on freight train); Chicago, etc., R. Co. v. Winfrey, 67 Nebr. 13, 93 NW 526; Knaisch v. Joline, 138 App. Div. 854, 123 NYS 412 (as to crowded condition of car); Ft. Worth, etc., R. Co. v. Abbott, (Tex. Civ. A.) 170 SW 117; Texas Tract Co. v. Sherron, (Tex.

41

10 Ala. A. 331, 65 S 430; McShane v. Chicago City R. Co., 170 Ill. A. 257; Graham v. Chicago, etc., R. Co.. 143 Iowa 604, 119 NW 708, 122 NW 573; Welch v. Boston El. R. Co., 187 Mass. 118, 72 NE 500; Konieczny v. Detroit, etc., R. Co., 164 Mich. 66, 128 NW 1096; Fewings V. Mendenhall, 88 Minn. 336, 93 NW 127, 97 AmSR 519, 60 LRA 601; Roscoe v. Metropolitan St. R. Co., 202 Mo. 576, 101 SW 32; Martin v. Missouri Pac. R. Co., 137 Mo. A. 694, 119 SW 444: Vecsy v. New Jersey Cent. R. Co., 88 N. J. L. 177, 95 A 977; Whilt V. Public Service Corp., 74 N. J. L. 141, 64 A 972 [aff 76 N. J. L. 729, 72 A 420]; Becker v. Interborough Rapid Transit Co., 128 App. Div. 455. 112 NYS 816; St. Louis, etc., R. Co. v. Fick, (Okl.) 149 P 1126; Madsen v. Utah Light, etc., Co., 36 Utah 528, 105 P 799. (2) As to injury from an object coming through the window and striking a passenger on the arm. Deagle v. New York, etc., R. Co., 217 Mass. 23, 104 NE 493. (3) In failing to protect a passenger who, while on the train, becomes unable to protect himself from injury. Adams v. St. Louis Southwestern R. Co., (Tex. Civ. A.) 137 SW 437. (4) To show that a passenger who went out on the platform of a car and fell off was so intoxicated as to put on the trainmen the duty of exercising more care to protect him than they would be required to exercise toward any other passenger. Louisville, etc., R. Co. v. Gregory, 141 Ky. 747, 133 SW 805, 35 LRANS 317.

38. Beery v. Chicago, etc., R. Co.. 73 Wis. 197, 40 NW 687. See also cases supra note 37.

[a] Reasonably certain.-In an action by a passenger against a railroad company for personal injuries caused by the breaking of machinery on defendant's locomotive, an instruction that the jury must feel "reasonably certain" that the engine, or the part in question, had not been properly cared for; that, in civil cases, the jury did not arrive at conclusions beyond a reasonable doubt; but that they should feel "reasonably certain," is unobjection

able.

Beery v. Chicago, etc., R. Co., 73 Wis. 197, 40 NW 687. 39.

Carroll v. Chicago City R. Co., 180 Ill. A. 309.

[a] Failure to disprove not admission. Where defendant pleads the general issue and in its defense proceeds to question the claim of nega failure to ligence, it disprove directly does not constitute an adCarroll v. Chicago City R. Co., 180 Ill. A. 309. another.

Civ. A.) 166 SW 897. (2) In causing injuries to a passenger while transferring from one car to Koran v. Metropolitan St. R. Co., 85 Kan. 707, 118 P 875. (3) In failing

to warn a passenger of a change in running trains going north on tracks usually used by the trains going south. Sorenson v. Illinois Cent. R. Co., 155 II. A. 606. (4) To show only ordinary negligence, authorizing only compensatory damages. Central Kentucky Tract Co. v. May, (Ky.) 126 SW 1092. (5) To warrant a finding of negligence of employees on a street car in continuing in the assumption that a passenger was drunk, and not sick and in need of medical attention. Middleton V. Whitridge, 213 N. Y. 499, 108 NE 192 [rev 156 App. Div. 154, 141 NYS 1041.

mission.

[b] Evidence held insufficient to rebut the inference of defendant's negligence arising from the occurrence of the accident. Gage V. Waldorf Astoria Hotel Co., 90 Misc. 331, 152 NYS 1019. See also generally supra § 1434.

40. See cases infra this note.

[a] Evidence held sufficient to sustain a recovery for negligence.St. Louis, etc.. R. Co. v. Evans, 99 Ark. 69, 137 SW 568; Arkansas Cent. R. Co. v. Janson, 90 Ark. 494, 119 SW 648. See also cases supra § 1450; infra § 1452.

[b] Evidence held insufficient to sustain a recovery for negligence.Kelly v. Chicago, etc., R. Co., 175 III. A. 196. See also cases supra § 1450; infra § 1452.

[b] Evidence held insufficient to show negligence.-(1) In the selec- 41. Cornette v. Baltimore, etc., R. tion of a driver. Orr v. Boockholdt, | Co., 195 Fed. 59, 115 CCA 61.

44

42

To

49

rant an inference or reasonable probability, from the facts proved, that defendant's negligence caused the injury; and such evidence is not sufficient if it merely raises a surmise or conjecture that such was the fact,50 as where the inference or probability that the injury was caused by defendant's negligence has no immediate connection with, or relation to, the established facts from which it is made.5

51

wanting in care is not sufficient to justify a finding
of negligence, 2 unless such probability or possibility
is based on rational grounds and is supported by the
facts proved.43 Where the evidence is equally as con-
sistent with due care as with negligence no recovery
can be had. These rules also apply to the proof
of willfulness, wantonness, or recklessness.45
justify a judgment of dismissal, the evidence should
show care so conclusively that the only fair infer-
ence is that the accident was one that could not
have been guarded against by ordinary care.
Proximate cause. Plaintiff must show by a pre-
ponderance of evidence that defendant's negligence
47 This fact
or wrong in fact caused his injuries.*
48 which
may be shown by circumstantial evidence,*
must be of such strength and character as to war-
its agents or employees.
Shreveport Tract. Co., 130 La. 1052,
58 S 879.

42. Boucher V. Boston, etc., R. Co., 76 N. H. 91, 76 A 993, 34 LRANS 728. AnnCas1912B 847.

43. Robinson v. Chicago, etc., R. Co., 135 Mich. 254, 97 NW 689.

44. Tooker v. Brooklyn, etc., R. Co., 80 App. Div. 371, 80 NYS 969; Cahn v. Manhattan R. Co., 37 Misc. 824, 76 NYS 893; Wilbour v. Rhode Island Co., (R. I.) 67 A 445.

45. Illinois Cent. R. Co. v. Warren, 149 Fed. 658, 79 CCA 350; Knight v. Tombigbee Valley R. Co., 190 Ala. 140, 67 S 238; Central of Georgia R. Co. v. Bell, 187 Ala. 541, 65 S. 835; Louisville, etc., R. Co. v. Smith, 135 Ky. 462, 122 SW 806; McLean v. Atlantic Coast Line R. Co., 81 S. C. 100, 61 SE 900, 128 AmSR 892, 18 LRANS 763.

ar

[a] Evidence held sufficient: (1) In an action against two railroad traffic a companies which had rangement, for the refusal of one to accept a ticket sold over both lines, to show that the action of the conductor on the second train was consciously oppressive in compelling plaintiff again to pay her fare. Tolleson v. Southern R. Co., 88 S. C. 7, 70 SE 311. (2) In an action by a passenger against a street railroad to justify punitive damages. Cullough v. Missouri Pac. R. Co., 94 Kan. 349, 146 P 1005; Memphis St. R. Co. v. Shaw, 110 Tenn. 467, 75 SW 713.

Mc

[b] Evidence that an engineer suddenly and violently backed his train without warning at a place where passengers might be expected to alight was some of evidence wantonness. Hiers v. Atlantic Coast Line R. Co., 75 S. C. 311, 55 SE 457, 9 AnnCas 1114.

46. Gage v. Waldorf Astoria Hotel Co., 90 Misc. 331, 152 NYS 1019. 47. Keck v. Calumet, etc., R. Co., 156 Ill. A. 402.

Burden of proof generally see supra §§ 1424-1436. 48. Richter v. St. Louis United R. Co., 145 Mo. A. 1, 129 SW 1055; Heim v. Philadelphia, etc., R. Co., 20 Pa. Dist. 769.

49. U. S.-St. Louis Southwestern R. Co. v. Britton, 190 Fed. 316, 111 CCA 216.

Ark.-Little Rock, etc.. R. Co. v. Harrell, 58 Ark. 454, 25 SW 117.

Ill.-Swan v. Boston Store of Chicago, 191 Ill. A. 84.

Equitable L.

Iowa.-Monahan V.
Ins. Co., 156 NW 994.
La. Otts v. Shreveport Tract. Co.,
130 La. 1052, 58 S 879.

Mass.-Davis v. Boston El. R. Co., 222 Mass. 475, 111 NE 174.

Mo.-Millirons v. Missouri, etc., R. Co., 176 Mo. A. 39. 162 SW 1069; Rattan v. Central Electric R. Co., 120 Mo. A. 270, 96 SW 735.

N. H.-Crawford v. Maine Cent, R. Co.. 76 N. H. 29, 78 A 1078.

Pa. Tucker v. Pittsburg, etc., R. Co.. 227 Pa. 66, 75 A 991.

Va.-Virginian R. Co. v. Bell, 118 Va. 492, 87 SE 570.

[a] Reasonable certainty.-Plaintiff is bound to make it reasonably certain that the injury was caused by the negligence of defendant or of

46

[§ 1452] (3) Applications of Rules. The above rules as to the weight and sufficiency of the evidence apply in actions for injuries to passengers by reason of negligence in respect to the condition of the carrier's platforms, approaches, or other parts of the station premises,52 or of its roadbed and

Otts v.

[b] Although the death of a pas-
senger was unwitnessed, where the
circumstances are such as to satisfy
reasonable minds that the accident
resulted from the negligence of the
Tucker v.
carrier, liability attaches.
Pittsburg, etc., R. Co., 227 Pa. 66, 75
A 991.

[c] Evidence held sufficient: (1)
To show that defendant's negligence
was the proximate cause of the in-
juries. Nashville, etc., R. Co. V.
S 7 (unlawful
Crosby, (Ala.) 70
search); St. Louis, etc., R. Co. v.
Coy, (Ark.) 168 SW 1106; Cleveland,
etc., R. Co. v. Henry, (Ind. A.) 80
NE 636, 81 NE 592; Monahan V.
Equitable L. Ins. Co., (Iowa) 156 NW
994; Lowenthal v. Vicksburg, etc., R.
Co., 117 La. 1007, 42 S 483; Moss v.
Detroit, etc., R. Co., 182 Mich. 40, 148
NW 204; Millirons v. Missouri, etc.,
R. Co., 176 Mo. A. 39, 162 SW 1069;
Dunlap v. Chicago, etc., R. Co., (Mo.
A.) 129 SW 262; McRae v. Metropoli-
tan St. R. Co., 125 Mo. A. 562, 102
SW 1032; Freeman v. Chicago, etc.,
R. Co., (Mont.) 154 P 912; Corcoran
v. Albuquerque Tract. Co., 5 N. M.
9, 103 P 645; Middleton v. Whitridge,
213 N. Y. 499, 108 NE 192, AnnCas
1916C 856 [rev 156 App. Div. 154, 141
NYS 104]; McCormick v. Rochester
R. Co., 133 App. Div. 760, 117 NYS
1110 [aff 198 N. Y. 510 mem, 92 NE
1090 mem]; O'Neil v. Metropolitan
St. R. Co., 103 App. Div. 607, 93 NYS
145 [aff 185 N. Y. 599 mem, 78 NE
1108 mem]; Missouri, etc., R. Co. v.
Norris, (Tex. Civ. A.) 184 SW 261;
Texas Tract. Co. v. Sherron, (Tex.
Civ. A.) 166 SW 897; Atchison, etc.,
R. Co. v. Fiedler, (Tex. Civ. A.) 158
SW 265; Missouri, etc., R. Co. V.
Craig, 52 Tex. Civ. A. 611, 114 SW
850; Northern Pac. R. Co. v. Hess, 2
Wash. 383, 26 P 866. (2) To show
that a passenger contracted smallpox
Mis-
from a railroad ticket agent.
souri, etc., R. Co. v. Raney, 44 Tex.
Civ. A. 517, 99 SW 589.
tain a verdict that defendant's negli-
gence in running his automobile in
which plaintiff was a passenger
caused the injuries complained of.
Fairchild v. Fleming, 125 Minn. 431,
147 NW 434. (4) To show that the
injuries were caused by the fall of
the elevator, and not by the acts of
fellow passengers in seeking to es-
Champagne v. Hamburger, 169
Cal. 683, 147 P 954.

cape.

previous freedom from such a condition being shown, proof of the cause is not insufficient merely because of the bare possibility that something else might have caused it. Stokes, v. Metropolitan St. R. Co., 173 Mo. A. 676, 160 SW 46.

50. Hatchett V. United R. Co., (Mo.) 175 SW 878; Schulz v. Second Ave. R. Co., 12 App. Div. 445, 42 NYS 710; St. Louis, etc., R. Co. v. Criner, (Okl.) 137 P 705; Gulf, etc., R. Co. v. Davis, (Tex. Civ. A.) 161 SW 932. [a] Evidence held insufficient to show that defendant's negligence was the proximate cause of the injuries. Providence SS. Co. v. Clare, 127 U. S. 45, 8 SCt 1094, 32 L. ed. 199; Biddle v. Jacobs, 116 Ark. 82, 172 SW 258; Rodgers v. Chicago, etc., R. Co., 97 Kan. 318, 154 P 1027; Louisville, etc., R. Co. v. Messer, 165 Ky. 506, 176 SW 1200; Louisville, etc., R. Co. v. Messer, 164 Ky. 218, 175 SW 360; Williams V. Citizens' Electric St. R. Co., 184 Mass. 437, 68 NE 840; Byron v. Lynn, etc., R. Co., 177 Mass. 303, 58 NE 1015; Brady v. Old Colony R. Co., 162 Mass. 408, 38 NE 710; Bosch v. Chicago, etc., R. Co., 131 Minn. 313, 155 NW 202; Mageau v. Great Northern R. Co., 102 Minn. 399, 113 NW 1016; Fagan V. Atlantic Coast Line R. Co., 170 App. Div. 47. 155 NYS 609; Coady v. Brooklyn Heights R. Co., 128 App. Div. 856, 113 NYS 100; Smith v. Texas Tract. Co., (Tex. Civ. A.) 180 SW 933; St. Louis Southwestern R. Co. v. Sterling, (Tex. Civ. A.) 178 SW 665.

[b] Impossible to determine cause of injury. Where it is impossible to determine whether the cold contracted by a passenger resulted from the insufficient heating of the car or from the fact that, after arrival at his destination, he marched with a militia company and stood around for several hours in the cold without an overcoat, the carrier is not liable. Louisville, etc.. R. Co. Scalf, 110 SW 862, 33 KyL 721, 26 LRANS 263.

51. (3) To sus

[d] Possibility of injury from other cause. (1) The possibility that a passenger could have caught a cold from other causes than the condition of defendant's waiting room would not prevent the jury from finding that the cold resulted proximately from such cause, if there was evidence to sustain such finding. and there was no evidence that the cold, in fact, resulted from any other cause. Crawford v. Maine Cent. R. Co., 76 N. H. 29, 78 A 1078. (2) To show that a cause of a prolapsed uterus was the jar from a passenger being thrown from a street car, the appearance of the uterus immediately thereafter, and the passenger's

V.

Ginn v. Pennsylvania R. Co., 220 Pa. 552, 69 A 992. 52. Ga. Atlantic, etc., R. Co. v. Owens, 123 Ga. 393, 51 SE 404.

Mass.-Anjou v. Boston El. R. Co., 208 Mass. 273, 94 NE 386, 21 AnnCas 1143 and note.

N. Y.-Weldon v. New York, etc., R. Co., 159 App. Div. 649, 144 NYS 868; Bacon v. Hudson, etc., R. Co., 154 App. Div. 742, 139 NYS 740; Ayres v. Delaware, etc., R. Co., 4 App. Div. 511, 40 NYS 11 [aff 158 N. Y. 254, 53 NE 22].

Pa.-Green v. Baltimore, etc., R. Co., 214 Pa. 240, 63 A 603.

Co. V.

Tex.-Galveston, etc.. R.
Bibb, (Civ. A.) 172 SW 178; Gulf,
etc., R. Co. v. Battle, (Civ. A.) 169
SW 1048; Davis v. Houston, etc., R.
Co., 29 Tex. Civ. A. 42, 68 SW 733.

[a] Evidence held sufficient: (1)
To sustain a recovery for injuries
caused by negligence in respect to
station.
the carrier's platforms or
Southern R. Co. v. Myrick, 12 Ga. A.
241, 77 SE 3; Herr v. Chicago, etc.,
R. Co., 189 Ill. A. 506; Maxfield v.
Maine Cent. R. Co., 100 Me. 79, 60
A
V.
710; McGuire Interborough

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