proper, [ 1480] c. Verdict, Findings, and Judgment. The verdict, findings, and judgment, in an action against a carrier for personal injuries, are governed by the rules applicable in civil cases generally.27 gence is on plaintiff. Buck v. Manhattan R. Co., 15 Daly 550, 553, 10 NYS 107 [aff 134 N. Y. 589 mem, 31 NE 628 mem]. 24. Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 SCt 859, 35 L. ed. 458; Patterson v. San Francisco, etc., Electric R. Co., 147 Cal. 178, 81 P 531; Roberts v. Sierra R. Co., 14 Cal. A. 180, 111 P 519, 527; Jackson v. Georgia R., etc., Co., 7 Ga. A. 644, 67 SE 898; Logan v. Metropolitan St. R. Co., 183 Mo. 582, 82 SW 126. [a] But where plaintiff pleads specific acts of negligence only, an instruction submitting the doctrine of res ipsa loquitur and charging that it not only raises a presumption of negligence but also shifts the burden of proof is error. Midland Valley R. Co. v. Conner, 217 Fed. 956, 133 CCA 628. 25. Pensacola Electric Co. v. Alex-| ander, 58 Fla. 337, 50 S 673; Regan v. St. Louis Transit Co., 180 Mo. 117, 79 SW 435. See also Whittlesey v. Burlington, etc., R. Co., 121 Iowa 597, 90 NW 516, 97 NW 66 (holding, however, the instruction in question to be unobjectionable). 26. Cal-Bonneau v. North Shore R. Co., 152 Cal. 406, 93 P 106, 125 Am SR 68; Roberts v. Sierra R. Co., 14 Cal. A. 180, 111 P 519, 527; French v. Pacific Electric R. Co., 1 Cal. A. 401, 82 P 395. Ga.-Georgia Coast, etc., R. Co. v. Jones, 140 Ga. 132, 78 SE 765; Southern R. Co. v. Nappier, 138 Ga. 31, 74 SE 778; Sanders v. Southern R. Co., 107 Ga. 132, 32 SE 840; Jackson v. Georgia R., etc., Co., 7 Ga. A. 644, 67 SE 898. Ind.-Indiana Union Tract. Co. v. Maher, 176 Ind. 289, 93 NE 1012, Ann Cas1914A 994; Louisville, etc., R. Co. v. Jones, 108 Ind. 551, 9 NE 476; Indianapolis Southern R. Co. v. Emmerson, 52 Ind. A. 403, 98 NE 895; New York, etc., R. Co. v. Callahan, 40 Ind. A. 223, 81 NE 670. Mo.-Furnish v. Missouri Pac. R. Co., 102 Mo. 438, 13 SW 1044, 22 Am SR 781; Crowell v. St. Joseph, etc., R. Co., 177 Mo. A. 111, 163 SW 278. N. C.-Overcash v. Charlotte Electric R. Light, etc., Co., 144 N. C. 572, 57 SE 377, 12 AnnCas 1040. See generally supra §§ 1426-1434. [a] Degree of proof.-(1) In a personal injury action by a passenger, an instruction that, in order to recover for such injuries as plaintiff received, it was necessary to show only that he was a passenger of defendant and that the car in which he was riding was overturned without his fault, and that, when this was done, the legal presumption arose that the overturning occurred through the negligence of defendant and the burden of proving that there had been no negligence was cast on defendant, did not require defendant to prove by a preponderance of evidence that it was not negligent, but simply declared that under the circumstances the presumption of negligence would prevail, and entitled plaintiff to recover, unless it was met or overcome by evidence of equal or greater weight, and the instruction was not erroneous. Bonneau V. North Shore R. Co., 152 Cal. 406, 93 P 106. 125 AmSR 68. (2) An instruction that a showing that the injury was caused by the carrier's act in operating the instrumentalities employed in its business raises a presumption of negligence which Thus the verdict or findings must be specific and throws on the carrier the burden of [b] Explanation of accident.-In 27. See Judgments [23 Cyc 623]; Trial [38 Cyc 1868]. [a] Construction of findings or verdicts.-(1) Southern R. Co. v. Utz, 52 Ind. A. 270, 98 NE 375; Baxter v. New York, etc., R. Co.. 214 Mass. 323, 101 NE 1070; Gill v. Erie R. Co., 151 App. Div. 131, 135 NYS 355 [rearg den 152 App. Div. 904 mem, 136 NYS 1135 mem] (holding that, where the court instructed that, if when plaintiff used the pass he was traveling on his own pleasure and business, and not on defendant's business, he could not recover, a verdict for plaintiff was a finding that, when injured, plaintiff was not traveling for his own pleasure and profit, but was engaged in his duties as an employee); International, etc., R. Co. v. Berthea, (Tex. Civ. A.) 179 SW 1087; Prellwitz v. Milwaukee Electric R., etc., Co., 163 Wis. 84, 157 NW 523. (2) Special findings should be construed together. Wanzer v. Chippewa Valley Electric R. Co., 108 Wis. 319, 84 NW 423 (findings held sufficient). (3) Where the jury answered affirmatively a question whether an assault on a passenger by a conductor was under circumstances of aggravation or cruelty, with vindictiveness or malice, a subsequent finding that the case was not a proper one for exemplary damages indicated that the jury did not intend by their former answer to find vindictiveness or malice. Huggard v. Chicago, etc., R. Co., 158 Wis. 1, 147 NW 1020. [b] Conclusiveness.—(1) In a passenger's action for personal injuries, in which the conductor and engineer were joined as defendants, a verdict exonerating them is conclusive that there was no negligence in the operation of the train causing its derailment. Morris v. Southern Pac. Co., 168 Cal. 485, 143 P 708. (2) A verdict of the jury in favor of the carrier held conclusive that it was not negligent. Fredericks v. Northern Cent. R. Co., 157 Pa. 103. 27 A 689, 22 LRA 306. (3) But where a carrier is charged with the negligence of its employee, joined as a defendant, and with other negligence, a verdict against the carrier, and for the employee, determines that the carrier was guilty of such other negligence. Doran v. Chicago. etc., R. Co., 128 Minn. 193, 150 NW 800. (4) A verdict against the carrier, and for the carrier's employee, joined as defendant, determines that there was no negligence of the employee imputable to the carrier. Doran v. Chicago, etc., R. Co., supra. (5) Where the carrier fails to offer evidence showing freedom from negligence and the jury finds for plaintiff, the verdict is conclusive on the question of defendant's negligence. Wiley v. Grand Trunk R. Co., 227 Fed. 127. 28. Johnson v. Washington Water Power Co., 62 Wash. 619, 114 P 453; Gay v. Milwaukee Electric R., etc., Co., 138 Wis. 348, 120 NW 283. 29. West Chicago St. R. Co. v. McNulty, 166 Ill. 203, 46 NE 784 [aff 64 Ill. A. 549]. 30. Ill-Weeks v. Chicago, etc., R. Co., 198 Ill. 551, 64 NE 1039 [aff 99 Ill. A. 518]. Ind. Southern R. Co. v. Ellis, 53 Ind. A. 34, 101 NE 105. Mass.-Blanchette v. Holyoke St. R. Co., 175 Mass. 51, 55 NE 481. Wis. Jirachek v. Milwaukee Electric R., etc., Co., 139 Wis. 505, 121 NW 326, 131 AmSR 1070. Que. La Compagnie du chemin de fer Canadien Du Pacifique v. Roy, 22 Que. Q. B. 459. 31. Giltman v. Brooklyn Heights R. Co., 129 App. Div. 654, 113 NYS 1046. 32. Hawaii.-Fuller V. Honolulu Rapid Transit, etc., Co., 16 Hawaii 1. Mich. Whipple v. Michigan Cent. R. Co., 130 Mich. 460, 90 NW 287. Mo.-Spohn V. Missouri Pac. R. Co., 87 Mo. 74. N. J.-Hansen v. North Jersey St. R. Co., (Sup.) 43 A 663 [rev on other grounds 64 N. J. L. 686, 46 A 718]. N. Y.-Neidenberg v. Dry Dock, etc., R. Co., 105 NYS 105; Fash v. East River Ferry Co., 8 NYSt 363. Okl.-St. Louis, etc., R. Co. V. Dobyns, 157 P 735. V. Va.-Richmond, etc., R. Co. Scott, 88 Va. 958, 14 SE 763, 16 LRA 91 (where there was substantial evidence in support of a verdict in plaintiff's favor, and therefore a finding of negligence was not reviewable on appeal). Wis.-Duell v. Chicago, etc., R. Co., 115 Wis. 516, 92 NW 269. [a] A new trial may be granted where plaintiff's evidence is so improbable as necessarily to lead to the conclusion that the verdict in his favor was the result of passion or prejudice. Spohn v. Missouri Pac. R. Co., 87 Mo. 74. [b] Decision of court; jury waived. Where the evidence in the case is not such as to admit of but one reasonable inference concerning defendant's negligence, a decision by the court, the jury being waived, in favor of plaintiff cannot be set aside on the ground that there is no evidence on which defendant's negligence might reasonably be inferred. Fuller v. Honolulu Rapid Transit, etc., Co., 16 Hawaii 1. 33. Louisville, etc., R. Co. V. Smith, 2 Duv. (Ky.) 556; Mirrielees v. Wabash R. Co.. 163 Mo. 470, 63 SW 718 (where the evidence was held insufficient to show involuntary projection of plaintiff's arm from the car window, and for this reason a verdict in plaintiff's favor for injury to his arm was set aside). 34. Christ v. Chicago R. Co., 191 Ill. A. 69. concilable conflict with the general verdict, the former control, and judgment should be entered on the special findings notwithstanding the general verdict.35 But special findings which are incon sistent with, or contradictory of, each other, or which are uncertain in their meaning, will not overcome the general verdict.3 A judgment cannot be entered on findings inconsistent with each other.37 XI. CONTRIBUTORY NEGLIGENCE OF PERSON INJURED 38 [§ 1481] A. In General-1. General Rules. A passenger must exercise ordinary care, and such care only, for his own safety, that is, such care as .39 an ordinarily prudent man would exercise for his safety and security under the same circumstances; and it is a well established rule, that, although there 35. Ebsary v. Chicago City R. Co., | finding that the depot was lighted by [a] Instances of inconsistency.-(1) [b] Special findings held not inconsistent with general verdict. Ebsary v. Chicago City R. Co., 164 Ill. 518, 45 NE 1017 [aff 61 III. A. 265] (holding that a special finding that the driver of defendant's car did not know that plaintiff was on the ground when he started the car is not necessarily inconsistent with a general verdict for plaintiff, as the conductor regulates the movements of the driver, and the complaint alleged that defendant had notice of plaintiff's position, "through its agents and servants"); Louisville, etc., Tract. Co. v. Walker, 177 Ind. 38, 97 NE 151; Brown v. Ohio, etc., R. Co., 138 Ind. 648, 37 NE 717, 38 NE 176; Henry v. Swailes, 57 Ind. A. 218, 105 NE 162 (holding that, in an action for injuries to a passenger in alighting from a car, answers to special interrogatories that lights were placed at the excavation into which plaintiff fell, and that she had boarded a car at that place earlier in the evening, are not inconsistent with a general verdict for plaintiff, where answers to other interrogatories show the condition surrounding the accident, and that plaintiff was not familiar with the surroundings, and did not show that there were any guards around the excavation, or that the lanterns illuminated the place where plaintiff alighted, or that she had an opportunity to see the excavation when she boarded the car); Southern R. Co. v. Ellis, 53 Ind. A. 34, 101 NE 105; Indianapolis Southern R Co. v. Tucker 51 Ind. A. 480, 98 NE 431; New York, etc., R. Co. v. Reilley, 49 Ind. A. 26, 96 NE 623; Cleveland, etc.. R. Co. v. Harvey, 45 Ind. A. 153, 90 NE 318 (holding that a general verdict, in an action for injuries to a passenger, finding that the raised end of the railroad's depot platform and the ground adjacent thereto were wholly unlighted and in total darkness, was not inconsistent with answers to special interrogatories four lamps which threw a profuse Wash. 112, 91 P 553. a 36. Louisville, etc., Tract. Co. v. Walker, 177 Ind. 38, 97 NE 151; Louisville, etc., Tract. Co. v. Worrell, 44 Ind. A. 480, 86 NE 78. [a] Thus, where the complaint charged negligence in the care and operation of the controllers, whereby fire was produced, which alarmed plaintiff and caused her to jump from the car while in motion, answers to interrogatories that the burning of the controllers was the result of some unforeseen cause, that there was no inherent defect in the controllers, that controllers on street cars do not burn out when in good order, and that the car was not inspected the night before the accident, being merely inconsistent with each other, and not necessarily with a general verdict for plaintiff, will not override such general verdict. Louisville, etc., Tract. Co. v. Worrell, 44 Ind. A. 480, 86 NE 78. 37. Hyatt v. New York Cent., etc., R. Co., 6 Hun. (N. Y.) 306; Haver lund v Chicago, etc., R. Co., 143 Wis. 415, 128 NW 273. See also Kohler v. West Side R. Co., 99 Wis. 33, 74 NW 568 (not inconsistent). [a] Findings of both gross and ordinary negligence.-Where the complaint in an action for injury to a passenger only charges ordinary negligence of the brakeman in assisting the passenger to board the train, a special finding that the brakeman was guilty of ordinary negligence for failing to exercise ordinary care, and another special finding that he was guilty of gross negligence because of willful misconduct. are inconsistent. and cannot stand, and any judgment rendered thereon must be set aside. Haverlund v. Chicago, etc., R. Co., 143 Wis. 415, 128 NW 273. 38. Cross references: Of ejected passenger see supra § 1202. Of passenger killed see Death [13 Of passenger on ferry see Ferries Generally see Negligence [29 Cyc As to damages see supra § 1401. Of carrier imputable to passenger Del.-Behen v. Philadelphia, etc., R. Co., 93 A 903; File v. Wilmington City R. Co., 23 Del. 463, 80 A 623; Elliott v. Wilmington City R. Co., 22 Del. 570, 73 A 1040; Smithers v. Wilmington City R. Co., 22 Del. 422, 67 A 167; Reiss v. Wilmington City R. Co.. 67 A 153; Betts v. Wilmington City R. Co., 19 Del. 448, 53 A 358. I-West Chicago St. R. Co. v. Manning, 170 Ill. 417, 48 NE 958 [aff 70 I. A. 239]; Chicago City R. Co. v. Dinsmore, 162 Ill. 658, 44 NE 887; McAvoy v. St. Louis, etc., R. Co., 180 Ill. A. 620; West Chicago St. R. Co. v. Horne, 100 I11. A. 259 [aff 197 Ill. 250, 64 NE 331]. Ind. Cleveland, etc.. R. Co. v. Hadley, 170 Ind. 204. 82 NE 1025, 84 NE 13, 16 LRANS 527, 16 AnnCas 1 [aff 40 Ind. A. 731, 82 NE 1025]: Jeffersonville R. Co. v. Hendricks, 26 Ind. 228. Iowa.-Weber v. Chicago, etc., R. Co.. 151 NW 852; Hutcheis v. Cedar Rapids, etc., R. Co., 128 Iowa 279, 103 NW 779. Ky. Illinois Cent. R. Co. v. Dallas, 150 Ky. 442, 150 SW 536; Chesapeake. etc., R. Co. v. Robinson, 135 Ky. 850, 123 SW 308. La-Clerc v. Morgan's Louisiana, etc., R., etc.. Co., 107 La. 370, 31 S 886. 90 AmSR 319. Me.-Pomroy v. Bangor, etc., R. Co.. 102 Me. 497, 67 A 561. Md.-Topp v. United R., etc., Co., 99 Md. 630, 59 A 52, 1 AnnCas 912. Mich.-Moore v. Saginaw, etc., R. Co., 115 Mich. 103, 72 NW 1112. Minn. Farrell v. Great Northern R. Co., 100 Minn. 361, 111 NW 388, 9 LRANS 1113. Miss. Illinois Cent. R. Co. V. Daniels, 96 Miss. 314, 50 S 721, 27 LRANS 128. Mo.-Becker v. Lincoln Real Est., etc., Co., 174 Mo. 246, 73 SW 581; has been negligence on the part of the carrier con- Klutts v. St. Louis, etc., R. Co., 75 Nebr.-Wright V. Selden-Breck Constr. Co., 97 Nebr. 840, 151 NW 926, LRA1915E 740. N. C.-Suttle v. Southern R. Co., 150 N. C. 668, 64 SE 778. Oh.-Interurban R.. etc., Co. V. Hancock, 75 Oh. St. 88, 78 NE 964, 116 AmSR 710 and note, 6 LRANS 997, 8 AnnCas 1036. S. C.-McLean v. Atlantic Coast Line R. Co., 81 S. C. 100, 61 SE 900, 1071, 128 AmSR 892, 18 LRANS 763; Carroll v. Charleston, etc., R. Co., 65 S. C. 378, 43 SE 870. Tex. St. John v. Gulf, etc., R. Co., (Civ. A.) 80 SW 235. Wis.-Curtis v. Detroit, Co.. 27 Wis. 158. etc., R. [a] Duty of passenger.-"While it is the duty of a railroad company to use all reasonable care to secure the safety of its passengers, there is also a duty resting upon the passenger to act with prudence, and to use the means provided for his transportation with reasonable circumspection and care.' Behen V. Philadelphia, etc., R. Co., (Del.) 93 A 903, 904. [b] Standard of care.-(1) The rule for determining whether a passenger has failed to exercise the proper degree of care is whether a person of ordinary prudence, in the same situation and having the knowledge possessed by the passenger, would have done the alleged negligent act. Clerc v. Morgan's Louisiana, etc., R., etc., Co., 107 La. 370, 31 S 886, 90 AmSR 319. (2) It is error to require the jury to find that plaintiff used that "high care" which a person of ordinary prudence would have used, etc., as plaintiff was legally required to use only ordinary care in order to free himself from contributory negligence. St. John Gulf, etc., R. Co., (Tex. Civ. A.) 80 SW 235. V. [c] "Ordinary" care varies according to the more or less threatening circumstances. West Chicago St. R. Co. v. Manning, 170 Ill. 417, 48 NE 958 [aff 70 I. A. 239]. [d] Employee as passenger.Where an employee is transported by a carrier to his place of work, although he is not a passenger, the carrier is bound to exercise ordinary care to refrain from injuring him, and he is bound to exercise the same degree of care to prevent injury to himself. St. Louis, etc., R. Co. v. Wiggam, 98 Ark. 259, 135 SW 889; St. Louis, etc., R. Co. v. Harmon, 85 Ark. 503. 109 SW 295. [e] Elevator passenger.-(1) It is the duty of a passenger in an elevator to use ordinary care to keep from being hurt. Becker v. Lincoln Real Est., etc., Co., 174 Mo. 246, 73 SW 581; Wright V. Selden-Breck Constr. Co., 97 Nebr. 840, 151 NW 926, LRA1915E 740. (2) Where a passenger on a combined passenger and freight elevator who was familiar with the construction of the elevator shaft, and knew that the car in its ascent passed within a short distance of the lintel, and that the car was without guard or rail on that side, thoughtlessly stood in such a position that his heel was caught between the car and the lintel as it passed that point, his negligence was such that the court should have instructed for defendant. Beidler V. Branshaw, 200 Ill. 425, 65 NE 1086 [rev 102 III. A. 187]. (3) But a guest of a hotel, riding in an elevator, cannot be held guilty of negligence when he assumes an attitude while so riding which its construction invites. Fraser v. Harper House Co., 141 Ill. A. 390. 40. U. S.-Winters v. Baltimore, etc., R. Co., 163 Fed. 106; Seymour v. Chicago, etc., R. Co., 21 F. Cas. No. 12,685, 3 Biss. 43. Ala.-Sweet etc., Co., 145 Ala. etc., Alabama R. Ala. 136. V. Birmingham R., 667, 39 S 767; South, Co. v. Schaufler, 75 Ark.-Oliver V. Ft. Smith Light, etc., Co., 89 Ark. 222, 116 SW 204, 131 AmSR 86; George v. St. Louis, etc., R. Co., 34 Ark. 613. Cal.-Fraser v. California St. Cable R. Co., 146 Cal. 714, 81 P 29. Del.-Behen v. Philadelphia, etc., R. Co., 93 A 903; Butler v. Wilmington City R. Co., 25 Del. 262, 78 A 871; Benson v. Wilmington City R. Co., 24 Del. 202, 75 A 793; Elliott v. Wilmington City R. Co., 22 Del. 570, 73 A 1040; Reiss v. Wilmington City R. Co., 67 A 153; McAllister v. People's R. Co., 20 Del. 272. Fla. Florida East Coast R. Co. v. Carter, 67 Fla. 335, 65 S 254, Ann Cas1916E 1299 and note; Jacksonville St. R. Co. v. Chappell, 21 Fla. 175. Ga.-Louisville, etc., R. Co. v. Edmondson, 128 Ga. 478, 57 SE 877; Southern R. Co. v. Cunningham, 123 Ga. 90, 50 SE 979; Chattanooga, etc., R. Co. v. Huggins, 89 Ga. 494, 15 SE 848; Central R. Co. v. Thompson, 76 Ga. 770; Macon, etc., R. Co. v. Johnson, 38 Ga. 409; Central of Georgia R. Co. v. Clay, 3 Ga. A. 286, 59 SE 843. Ill. Keokuk Northern Line Packet Co. v. True, 88 111. 608; Chicago, etc., R. Co. v. Hazzard, 26 Ill. 373; Galena, etc., R. Co. v. Fay, 16 Ill. 558, 63 AmD 323; Chicago, etc., R. Co. V. Weir, 91 Ill. A. 420. Ind. Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Frank Bird Transfer Co. v. Krug, 30 Ind. A. 602, 65 NE 309; Citizens' St. R. Co. v. Merl, 26 Ind. A. 575, 59 NE 491. Iowa. Waterbury v. Chicago, etc., R. Co., 104 Iowa 32, 73 NW 341. Ky.-Illinois Cent. R. Co. v. Dallas, 150 Ky. 442, 150 SW 536; John H. Radel Co. v. Borches, 147 Ky. 506, 145 SW 155, 39 LRANS 227; Chesapeake, etc., R. Co. v. Robinson, 135 Ky. 850, 123 SW 308; Bailey v. Cincinnati, etc., R. Co., 20 SW 198, 14 KyL 226; Kentucky Cent. R. Co. v. Dills, 4 Bush 593; Newport News, etc., R. Co. v. Boles, 13 KyL 208; Kentucky Cent. R. Co. v. Thomas, 6 KyL 599, 13 Ky. Op. 269. La.-Dean V. Louisiana R., etc., Co., 134 La. 793, 64 S 716; Woods v. Jones, 34 La. Ann. 1086. Md. Central R. Co. v. Smith, 74 Md. 212, 21 A 706. Minn. Smith v. St. Paul City R. Co., 32 Minn. 1, 18 NW 827, 50 AmR 550. Miss.-Illinois Trail, 25 S 863. Mo.-Raming v. Metropolitan St. R. Co., 157 Mo. 477, 57 SW 268; Weber v. Kansas City Cable R. Co., 100 Mo. 194, 12 SW 804, 13 SW 587, 18 Am SR 541, 7 LRA 819; Mitchell v. Chicago, etc., R. Co., 132 Mo. A. 143, 112 SW 291; Fry v. St. Louis Transit Co., 111 Mo. A. 324, 85 SW 960; Talbot v. Chicago, etc., R. Co., 72 Mo. A. 291. Nebr.-Chicago, etc., R. Co. v. Winfrey, 67 Nebr. 13, 93 NW 526. N. J.-Harper v. Erie R. Co., 32 N. J. L. 88. N. Y.-Ward v. International R. Co., 206 N. Y. 83, 99 NE 262, Ann Cas1914A 1170 and note; Weill v. New York, 147 App. Div. 634, 132 NYS 609 [resettling of order den 148 App. Div. 919 mem, 133 NYS 290 mem]. N. C.-Carter v. Seaboard Air Line R. Co., 165 N. C. 244, 81 SE 321; Penny v. Atlantic Coast Line R. Co., 153 N. C. 296, 69 SE 238, 32 LRANS 1209. N. D.-Whalen v. Great Northern Co. V. R. Co., 23 N. D. 607, 137 NW 576. Pa.-Coburn v. Philadelphia, etc., R. Co., 198 Pa. 436, 48 A 265; Pittsburgh, etc., R. Co. v. Hinds, 53 Pa. 512, 91 AmD 224; Pennsylvania R. Co. v. Zebe, 33 Pa. 318; Pennsylvania R. Co. v. Aspell, 23 Pa. 147, 62 AmD 323. S. C.-Doolittle v. Southern R. Co., 62 S. C. 130, 40 SE 133; Renneker v. South Carolina R. Co., 20 S. C. 219. Tex.-Houston, etc., R. Co. v. Gorbett, 49 Tex. 573; Beaty v. Missouri, etc., R. Co., (Civ. A.) 175 SW 450; Stamp v. Eastern R. Co., (Civ. A.) 161 SW 450; Missouri, etc.. R. Co. v. Miller, 8 Tex. Civ. A. 241, 27 SW 905. Va.-Virginia R. Co. v. Bell, 115 79 Va. 429, SE 396, AnnCas1915A 804. Wash-Graham V. McNeil, 20 Wash. 466, 55 P 631, 72 AmSR 121, 43 LRA 300. W. Va.-Fisher v. West Virginia, etc., R. Co., 39 W. Va. 366, 19 SE 578, 23 LRA 758; Downey v. Chesapeake, etc., R. Co., 28 W. Va. 732. Wis. Conroy v. Chicago, etc., R. Co., 96 Wis. 243, 70 NW 486, 38 LRA 419; Chamberlain v. Milwaukee, etc., R. Co., 7 Wis. 425. [a] The negligence need not amount to rashness to defeat a recovery. Galena, etc., R. Co. v. Fay, 16 Ill. 558, 63 AmD 323. the mere [b] The prima facie liability of a carrier for injuries to a passenger by derailment, arising from fact of the accident and the injury, is conditioned on the exercise of reasonable care by the passenger. Winters v. Baltimore, etc., R. Co., 163 Fed. 106. [c] Duty to avail himself of knowledge acquired.A street car passenger, familiar with the railroad at the place of the accident and the operation of cars there, is bound to avail himself of such knowledge. Elliott v. Wilmington City R. Co., 22 Del. 570, 73 A 1040. [d] The rule against imputed contributory negligence does not absolve a passenger or guest against using ordinary care for his own safety, as no one can be allowed to shut his eyes to danger in blind reliance on the unaided care of another, without assuming the consequences. Fujise v. Los Angeles R. Co., 12 Cal. A. 207. 107 P 317. See generally Negligence [29 Cyc 542]. [e] Additional damage caused by passenger to himself.-Where a passenger has sustained an injury by the carrier, the latter will not be liable for any neglect of the passenger after the injury sustained, causing additional damage to the passenger. Secord v. St. Paul, etc., R. Co., 18 Fed. 221, 5 McCrary 515. [f] A passenger accidentally shot (1) by the carrier's employee is not entitled to recover, where his own acts contributed to the accident. Dean V. Louisiana R., etc., Co., 134 La. 793, 64 S 716. (2) A passenger was guilty of contributory negligence barring recovery for injury on being shot on alighting by one fellow passenger attempting to shoot another, if he left the car while the pistol was pointed toward the platform, and the danger was as obvious to him as to the carrier. Penny v. Atlantic Coast Line R. Co.. 153 N. C. 296, 69 SE 238, 32 LRANS 1209 and note. (3) But a passenger who asked the conductor to see the latter's automatic pistol, and who took the pistol and returned it to the conductor, was not guilty of negligence per se, and his act does not preclude a recovery for injuries sustained in consequence of the conductor causing the pistol to be discharged. Texas 41 43 In fortune from which the injury results.4 But, although the conduct of a passenger has contributed to the injury sustained, yet if such conduct has not been in a legal sense imprudent or negligent, he may recover, provided the carrier is in fault.12 some jurisdictions the legal effect of a passenger's contributory negligence is regulated by statute. Assumption of risk. A passenger does not assume the risk of the carrier's negligence, or in other words, he has a right to assume, in the absence of knowledge to the contrary, that the carrier's employees will not be negligent, and that all necessary precautions for his safety will be taken; the only risks assumed are those of accidents which arise after the carrier has done its full duty, that is, the Midland R. Co. v. Monroe, (Tex. Civ. [g] Interference in altercation.Where a passenger voluntarily and without excuse interferes in an altercation between strangers and the carrier's employee, he cannot recover from the carrier for injuries received. Gardner V. Interborough Rapid Transit Co., 45 Misc. 424, 90 NYS 373. Proximate cause generally see infra § 1489. 41. Winters v. Baltimore, etc., R. Co., 163 Fed. 106; Louisville R. Co. v. Meglemery, 78 SW 217, 25 KyL 1587 [reh den 79 SW 287, 25 KyL 2062]; Kentucky Cent. R. Co. V. Thomas, 79 Ky. 160, 42 AmR 208; Shealey v. South Carolina, etc., R. Co., 67 S. C. 61, 45 SE 119; Doolittle v. Southern R. Co., 62 S. C. 130, 40 SE 133; Cooper v. Georgia, etc., R. Co., 56 S. C. 91, 34 SE 16; Williams v. Galveston, etc., R. Co., 34 Tex. Civ. A. 145, 78 SW 45; St. Louis Southwestern R. Co. v. Ricketts, 22 Tex. Civ. A. 515, 54 NW 1090. See also cases supra note 40. [a] Thus, where the contributory negligence of a passenger injured by the derailment of a car of the train on which he was riding contributed to the injury, he was not entitled to recover, although his negligence did not contribute to the derailment. Winters v. Baltimore, etc., R. Co., 163 Fed. 106. 42. St. Louis, etc., R. Co. v. Maddry, 57 Ark. 306, 21 SW 472; Hanson v. Mansfield R., etc., Co., 38 La. Ann. 111, 58 AmR 162; New York, etc., R. Co. v. Ball, 53 N. J. L. 283, 289, 21 A 1052. See also cases supra note 39. "To exonerate defendant from liability for its negligence, which also caused plaintiff's injury, it is not sufficient that plaintiff, by his act, contributed thereto, but it must further appear that in doing that act he was at fault and guilty of what the law calls negligence." New York, etc., R. Co. v. Ball, supra. 43. See statutory provisions. [a] In Nebraska, (1) under Comp. St. c 72 art 1 § 3, contributory negligence on the part of a passenger, which will avoid a recovery, must amount to criminal negligence, that is, it must be an act committed under such circumstances as to make it obviously perilous and to show a willful disregard of the danger. Chicago, etc., R. Co. v. Winfrey, 67 Nebr. 13. 93 NW 526. (2) And where, in an action by a passenger for negligence, under Nebr. Consol. St. c 9 § 572, making carriers liable for injuries to passengers, except where the injury was due to the passenger's criminal negligence, the evidence discloses the fact that plaintiff was guilty of gross negligence which contributed to his injury, such negligence is fatal to his recovery, and it is the duty of the court to instruct the jury to return a verdict for defendant. Clark V. Zarniko, Fed. 607. 45 CCA 494. 106 [b] Massachusetts.-Under St. (1906) c 463 pt 1 § 63, as amended by 44 ordinary incidents of travel;45 and he is not to be deemed guilty of negligence unless he has, or is charged with, knowledge of a defect or peril, and then fails to use ordinary care to avoid injury.** [$ 1482] 2. Persons under Disability-a. In General. What will constitute failure to exercise ordinary care on the part of the passenger may depend on the mental and physical capacity of the passenger himself, and acts which might be negligent in a normal person may not be contributory negligence in view of the passenger's disability, such as will defeat his recovery for injury where the carrier has been negligent, as no greater care can be required of him than his ability will allow him to exercise.47 Accordingly it has been held St. (1907) c 392, providing for recovery against carriers in cases of wrongful death, proof that a deceased passenger was in the exercise of due care is not essential. Murphy v. Boston, etc., R. Co., 216 Mass. 178, 103 NE 291. [c] Mississippi-Under Rev. Code (1892) § 3548, providing that contributory negligence is no defense to an action against a railroad company for injuries caused by a kicking switch made in a municipal corporation, contributory negligence is still a defense to an action for injuries from such a switch made outside a municipal corporation. Yazoo, etc., R. Co. v. Humphrey, 83 Miss. 721, 36 S 154. 44. U. S.-New Jersey Cent. R. Co. v. Hirsch, 223 Fed. 44, 138 CCA 408; Delaware, etc., R. Co. v. Price, 221 Fed. 848, 137 CCA 406 [certiorari den 238 U. S. 636 mem, 35 SCt 939 mem, 59 L. ed. 1500 mem]. Conn. Moffitt v. Connecticut Co., 86 Conn. 527, 86 A 16. Del.-Smithers v. Wilmington City R. Co., 22 Del. 422, 67 A 167. Ill-Hickey v. Chicago City R. Co., 148 Ill. A. 197. Ind. Anderson v. Scholey, 114 Ind. 553, 17 NE 125; Indiana Union Tract. Co. v. Thomas, 44 Ind. A. 468, 88 NE 356; Frank Bird Transfer Co. V. Krug, 30 Ind. A. 602, 65 NE 309. Iowa.-Dieckmann v. Chicago, etc., R. Co., 145 Iowa 250, 121 NW 676, 139 AmSR 420, 31 LRANS 338. La.-Leveret v. Shreveport Belt R. Co., 110 La. 399, 34 S 579. Md.-United R., etc., Co. v. Riley, 109 Md. 327, 71 A 970. Miss.-Illinois Cent. R. Co. v. Daniels, 96 Miss. 314, 50 S 721, 27 LRA NS 128; Yazoo, etc., R. Co. v. Roberts, 88 Miss. 80, 40 S 481. Mo.-Parks v. St. Louis, etc., R. Co., 178 Mo. 108, 77 SW 70, 101 Am SR 425; McKinstry v. St. Louis Transit Co., 108 Mo. A. 12, 82 SW 1108; Erwin v. Kansas City, etc., R. Co., 94 Mo. A. 289, 68 SW 88. N. Y.-Ward v. International R. Co., 206 N. Y. 83, 99 NE 262, Ann Cas1914A 1170. Tex. Missouri, etc., R. Co. V. Churchill, (Civ. A.) 171 SW 517. car "The doctrine of assumed risks or waiver of right of action, which has most frequent application to the relation of master and servant, while theoretically distinct, in its practical application to ordinary negligence cases between passengers and riers, not affected by any contractual relation other than the implied contractual obligations between them, necessarily, it would seem, involves the doctrine of contributory negligence. For unless the position voluntarily taken by a passenger exposes him to dangers that are obvious and patent, or such as he knew of, or by the exercise of ordinary care ought to have anticipated, he cannot in justice, in case of resultant injury, be held guilty of contributory negligence, or to have assumed the risk of an injury he had no reason to anticipate, or to have waived his right of action therefor. On the other hand, if the danger to which he voluntarily exposed himself, was obvious and patent, or such as he knew of, or by the exercise of ordinary care ought to have anticipated, and injury follows in consequence thereof, then he was guilty of contributory negligence, and must be held to have assumed the risk of his position." United R., etc., Co. V. Riley, 109 Md. 327, 339, 71 A 970. [a] Street car operatives. A person attempting to board a street car, whether stopped on signal or not, is entitled to rely on the reasonableness of the conduct of the operatives, judged by what they knew, or ought to have known, of the operation of the car. Moffitt v. Connecticut Co., 86 Conn. 527, 86 A 16. While in transit see infra §§ 15071514. 45. Fla. Florida East Coast R. Co. v. Carter, 67 Fla. 335, 65 S 254, AnnCas1916E 1299. Mich.-Mitchell v. Chicago, etc., R. Co., 51 Mich. 236, 16 NW 388, 47 AmR 566. Mo.-Farmer v. St. Louis, etc., R. Co., 178 Mo. A. 579, 161 SW 327. Nebr.-Jelinek v. Omaha, etc., St. R. Co., 98 Nebr. 751, 154 NW 545. N. D. McGregor v. Great Northern R. Co., 31 N. D. 471, 154 NW 261. Tex.-Texas Midland R. Co. V. Monroe, (Civ. A.) 155 SW 973; Houston, etc., R. Co. v. Harris, (Civ. A.) 120 SW 500; Herring v. Galveston, etc., R. Co., (Civ. A.) 108 SW 977 [writ of error dism 102 Tex. 100, 113 SW 5211; Galveston, etc., R. Co. v. Patillo, 45 Tex. Civ. A. 572, 101 SW 492. Va. Norfolk, etc., R. Co. V. Rhodes, 109 Va. 176, 63 SE 445. See also infra § 1507. [a] Presumed knowledge of incidents.-Railroad passengers are presumed to know the everyday incidents of railroad travel, and it cannot be expected that they will be treated, or put under restraint, as if they were children. Mitchell v. Chicago, etc., R. Co., 51 Mich. 236, 16 NW 388, 47 AmR 566. [b] A passenger assumes the risk of the lurching or rocking of trains in passing rapidly over curves on the road. Norfolk, etc., R. Co. v. Rhodes, 109 Va. 176. 63 SE 445. See also supra § 1387. 46, U. S.-The Anglo Norman, 1 F. Cas. No. 393, 4 Sawy. 185. Ill. Hickey v. Chicago City R. Co., 148 Ill. A. 197. Ind.-Ohio, etc., R. Co. v. Stansberry, 132 Ind. 533, 32 NE 218; Union Tract. Co. v. Sullivan, 38 Ind. A. 513, 76 NE 116. Md.-United R., etc., Co. v. Riley, 109 Md. 327, 71 A 970. Oh.-Cincinnati, etc., R. Co. V. Burkhardt, 30 Oh. Cir. Ct. 699. [a] The proper test as to a passenger's knowledge of danger is not that possessed by him, but that of persons of ordinary care and prudence when placed under like circumstances. Cincinnati, etc., R. Co. v. Burkhardt, 30 Oh. Cir. Ct. 699. 47. U. S.-Texas, etc., R. Co. v. that, if a passenger is laboring under a disability, Duty to have attendant. It has been held that if ant, the negligence of the latter will be regarded in law as the negligence of the passenger attended, when he has been injured in consequence of such negligence.51 [§ 1483] b. Children. The same care, discretion, and foresight cannot be required of a child of immature years as of an ordinary adult, but he is required to exercise such care and judgment as may reasonably be expected of a child of the same age and mental development as the one in question, and to that extent he is responsible for acts or omissions contributing to his own injury." Stewart, 228 U. S. 357, 33 SCt 548, 57 | conscious from sleep or coma, and Ark.-Little Rock Tract., etc., Co. v. Nelson, 66 Ark. 494, 52 SW 7; St. Louis, etc., R. Co. v. Maddery, 57 Ark. 306, 21 SW 472. Cal.-Teale v. Southern Pac. Co., 20 Cal. A. 570, 129 P 949. Colo.-Denver, etc., R. Co. v. Derry, 47 Colo. 584, 108 P 172, 27 LRANS 761. Ga. Findley v. Central of Georgia R. Co., 7 Ga. A. 180, 66 SE 485. Ill-Schneider v. Chicago St. R. Co., 80 111. A. 306. Iowa. Walter v. Chicago, etc., R. Co., 39 Iowa 33. Kan.-Tempfer v. Joplin, etc., R. Co., 89 Kan. 374, 131 P 592. United Mich.-Wilson V. Detroit R. Co., 167 Mich. 107, 132 NW 762. Mo.-Hickman v. Missouri Pac. R. Co., 91 Mo. 433, 4 SW 127. N. H.-Foss v. Boston, etc., R. Co., 66 N. H. 256, 21 A 222, 49 AmSR 607, 11 LRA 367. N. Y.-Mowrey v. Central City R. Co., 51 N. Y. 666; Sheridan v. Brooklyn City, etc., R. Co., 36 N. Y. 39, 1 Transcr. A. 49, 34 How Pr 217, 93 Am D 490; Shadlesky v. New York City R. Co., 88 NYS 1014. Pa. Frega v. Philadelphia Rapid Transit Co., 245 Pa. 31, 91 A 222, LR A1915A 395. Tenn.-Felton v. Horner, 97 Tenn. 579, 37 SW 696. Tex.-Texas, etc., R. Co. v. Reid, (Civ. A.) 74 SW 99; St. Louis, etc., R. Co. v. Ferguson, 26 Tex. Civ. A. 460, 64 SW 797. [a] The age alone of an adult passenger injured while alighting from a train in consequence of the starting thereof is not a circumstance showing negligence, in the absence of any evidence as to her physical and mental condition. Hodges v. Southern Pac. Co., 3 Cal. A. 307, 86 P 620. [b] Woman alighting in dark.That a woman injured while alighting from her train in the dark without assistance, there being none at hand, realized the risk of doing so did not make her act the voluntary assumption of the risk, SO as to charge her with contributory negligence. Teale v. Southern Pac. Co., 20 Cal. A. 570, 129 P 949. [c] Blind persons.-The care to be observed by one who is blind, traveling alone on railroad trains, is greater than that required of one without such infirmity. Denver, etc.. R. Co. v. Derry, 47 Colo. 584, 108 P 172. 27 LRANS 761; Wilson v. Detroit United R., 167 Mich. 107, 132 NW 762. [d] Passenger having imperfect understanding of English.--Where a passenger in the caboose of a freight train, on its stopping at a station. stepped on the front platform and was warned by an employee of the approach of a train about to collide behind, but not understanding English resisted his efforts to drag him away, he was not guilty of such contributory negligence as to preclude a recovery by his administrator for the company's negligence. Walter v. Chicago, etc., R. Co., 39 Iowa 33. [e] One who carelessly sits down on an electric railroad track to await a car at a station is not continuously negligent by reason of becoming un thereby unable to avoid a car wantonly run on him. Tempfer v. Joplin, etc.. R. Co., 89 Kan. 374, 131 P 592. [f] A pregnant woman who is injured by the negligent coupling of cars while on a railroad journey is not precluded from recovering on the ground of negligence in undertaking the journey, unless such journey under the circumstances would be dangerous. St. Louis, etc., R. Co., v. Ferguson, 26 Tex. Civ. A. 460, 64 SW 797. [g] An elderly female (1) passenger is not guilty of contributory negligence as a matter of law in alighting to ascertain whether the train she is on is the right one, so as to bar a recovery for injuries sustained through the carrier's failure properly to light the station grounds, where there is no one in charge of her car. Texas, etc., R. Co. v. Stewart, 228 U. S. 357, 33 SCt 548, 57 L. ed. 875 [aff 183 Fed. 575, 105 CCA 646]. (2) It was not conclusively contributory negligence for an old woman, to avoid the more serious consequences of falling from the bottom step, being unable to get back up on the platform, to attempt to protect herself by stepping from a very slowly moving car. Findley v. Central of Georgia R. Co., 7 Ga. A. 180, 66 SE 485. (3) A woman well along in years, but who was robust, was not guilty of contributory negligence in getting off defendant's train without assistance at her destination, carrying a small valise and a suit case, in the dark, there being no assistance at hand. Teale V. Southern Pac. Co., 20 Cal. A. 570, 129 P 949. (4) However, a woman sixtythree years old, and crippled by a former dislocation of her hip, traveling in the caboose of a freight train, is negligent in leaving her seat to get a drink while the train is switching cars, so as to prevent her recovery for injuries from a fall caused by the jolt in coupling cars, it appearing that the jolt was not greater than is usual in such cases, and that she was aware that such jolts necessarily follow the coupling of cars. Felton v. Horner, 97 Tenn. 579, 37 SW 696. 48. New Orleans, etc., R. Co. v. Statham, 42 Miss. 607, 97 AmD 478: Young v. Missouri Pac. R. Co., 93 Mo. A. 267; Foss v. Boston, etc., R. Co., 66 N. H. 256, 21 A 222, 49 AmSR 607, 11 LRA 367; Willetts v. Buffalo, etc., R. Co., 14 Barb. (N. Y.) 585. See also supra § 1330. [a] Passenger having weak knee. -Where in alighting from a train plaintiff was assisted by the brakeman, but she failed to inform him that her knee had been weak for some time previously and that she had been affected with synovitis in a subacute form, and in consequence received an injury in her knee, the carrier was not guilty of negligence, and if there was any negligence it was attributable to plaintiff in not telling the brakeman of her feeble and delicate knee. McGinney v. Canadian Pac. R. Co., 7 Man. 151. [b] Notice to one conductor sufficient. Where a husband placed his wife on a train as a passenger and notified the conductor that she was in feeble health and the latter promised to repeat such notice to an 52 other conductor who took charge of the train before the end of the journey, but he omitted so to do, the omission of the passenger to notify the second conductor did not constitute contributory negligence. Foss v. Boston, etc., R. Co., 66 N. H. 256, 21 A 222, 49 AmSR 607, 11 LRA 367. [c] Pregnant woman alighting.A pregnant woman who is invited by the train employee to alight at an unsafe place and does so is not guilty of contributory negligence in failing to disclose her pregnancy to the employee. West V. St. Louis Southwestern R. Co., 187 Mo. 351, 86 SW 140; Guay v. Canadian Northern R. Co., 15 Man. 275. 49. New Orleans, etc., R. Co. v. Statham, 42 Miss. 607, 97 AmD 478. See also supra § 1064. 50. St. Louis, etc., R. Co. v. Maddry, 57 Ark. 306, 21 SW 472 (blind passenger); Sheridan V. Brooklyn City, etc., R. Co., 36 N. Y. 39, 1 Transcr. A. 49, 34 HowPr 217, 93 AmD 490; Toledo, etc., Tract. Co. v. McFall, 28 Oh. Cir. Ct. 362; Texas, etc., R. Co. v. Reid, (Tex. Čiv. A.) 74 SW 99. [a] Pensioned for total disability. -A carrier cannot defeat a claim for damages in an action against it for negligence on the ground that plaintiff was drawing a pension for total disability, and was traveling alone and unattended, if plaintiff exercised such care as men in his condition of mind and body would ordinarily exercise under like circumstances. Toledo, etc., Tract. Co. v. McFall, 28 Oh. Cir. Ct. 362. 51. Ohio, etc., R. Co. v. Stratton, 78 Ill. 88; Morrison v. Erie R. Co., 56 N. Y. 302; Willetts v. Buffalo, etc., R. Co., 14 Barb. (N. Y.) 585. See generally Negligence [29 Cyc 545]. 52. Ark.-Little Rock Tract., etc., Co. v. Nelson, 66 Ark. 494, 52 SW 7. D. C.-Metropolitan R. Co. v. Falvey. 5 App. 176. Ga.-Jones v. Georgia, etc., R. Co., 103 Ga. 570, 29 SE 927. Ill.-Illinois Cent. R. Co. v. Johnson, 221 Ill. 42, 77 NE 592 [rev 123 Ill. A. 300]; Rothschild v. Levy, 118 Ill. A. 78; Cleveland, etc., R. Co. v. Scott, 111 Ill. A. 234; Lake Shore, etc., R. Co. v. Kelsey, 76 Ill. A. 613 [aff 180 Ill. 530, 54 NE 608]. Ind. Udell v. Citizens' St. R. Co., 152 Ind. 507, 52 NE 799, 71 AmSR 336; Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, 44 NE 1106, 34 LR A 141: Knauss v. Lake Erie. etc., R. Co., 29 Ind. A. 216. 64 NE 95. Ky.-Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 SW 1010, 17 KyL 297; Chesapeake, etc., R. Co. v. Lynch, 89 SW 517, 28 KyL 467. Mass.-Farnon v. Boston etc., R. Co.. 180 Mass. 212. 62 NE 254. Mich.-East Saginaw City R. Co. v. Bohn, 27 Mich. 503. Minn.-Benedict V. Minneapolis, etc., R. Co., 86 Minn. 224, 90 NW 360, 91 AmSR 345, 57 LRA 639 (boy of sixteen); Jackson v. St. Paul City R. Co.. 74 Minn. 48, 76 NW 956. Mo.-Sly v. Union Depot R. Co., 134 Mo. 681. 36 SW 235; Ridenhour v. Kansas City Cable R. Co., 102 Mo. 270, 13 SW 889. 14 SW 760; Muehlhausen v. St. Louis R. Co., 91 Mo. 332, 2 SW 315; Wyatt v. Citizens' R. Co., 55 Mo. 485; Buck v. People's St. R.. etc., Co., 46 Mo. A. 555. Nebr.-Dore v. Omaha, etc., R. Co., |