49

guilty of contributory negligence. If, however, there is no evidence on an issue of fact, or if the evidence is so slight that a finding of its existence or nonexistence would not be sustained, or if the evidence is conclusive of its existence or nonexistence, the question becomes one of law for the court and should not be submitted to the jury;50 and the court may dispose of the case by a dismissal or nonsuit.5

was for the jury. Burns v. Alabama, etc., R. Co., 93 Miss. 816, 47 S 640. (2) Where the engineer of a passenger train sees a signal to stop at a flag station, and understands it, and does not stop, and there is no reasonable explanation as to why he does not do so, it is a question for the jury whether his acts are characterized by malice, willfulness, or wantoness, justifying punitive damages. Yazoo, etc., R. Co. v. White, 82 Miss. 120, 33 S 970.

49. Chesapeake, etc., R. Co. V. Lynch, 89 SW 517, 28 KyL 467; Trinity, etc., R. Co. v. Voss, (Tex. Civ. A.) 160 SW 663; Kirkland v. Texas, etc., R. Co., (Tex. Civ. A.) 140 SW 505; St. Louis Southwestern R. Co. v. Franks, 52 Tex. Civ. A. 614, 114 SW 874; St. Louis Southwestern R. Co. v. Foster, 46 Tex. Civ. A. 517, 103 SW 194.

a

[a] Illustrations.—(1) It is question for the jury whether a passenger fifteen years old who when carried past her station walked back to her station and was thereby injured, acted as might reasonably be expected of one in her situation and at her age, so as to make the carrier liable for the injuries received. Chesapeake, etc., R. Co. v. Lynch, 89 SW 517, 28 KyL 467. (2) A woman eighteen years old and inexperienced in railroad travel who asked a fellow passenger instead of trainmen as to whether the next stop was her destination, and who on receiving an affirmative answer alighted at the next stop, which was an intermediate point, was not, as a matter of law, guilty of such negligence as will preclude her from recovering for the injuries received in consequence of leaving the train before reaching her destination. Kirkland v. Texas, etc., R. Co., (Tex. Civ. A.) 140 SW 505.

50. Anniston Electric, etc., Co. v. Anderson, 11 Ala. A. 554, 66 S 924; Thomas v. Southern R. Co., 122 N. C. 1005, 30 SE 343; Bradley v. Atlantic Coast Line R. Co., 99 S. C. 78, 82 SE 1009, AnnCas1916E 1219; Mulligan v. Southern R. Co., 84 S. C. 171, 65 SE 1040.

Co. v. Hudson, 117 Ky. 995, 80 SW 454, 25 KyL 2154; Louisville, etc., R. Co. v. Ballard, 85 Ky. 307, 3 SW 530, 9 KyL 7, 7 AmSR 600.

Miss. Godfrey v. Meridian Light, etc., Co., 101 Miss. 565, 58 S 534.

S. C.-Martin v. Southern R. Co., 89 S. C. 32, 71 SE 236.

R.

Tex.-St. Louis Southwestern Co. v. Pruitt, 97 Tex. 487, 80 SW 72 [writ of err den (Civ. A.) 79 SW 598]; Davis v. Houston, etc., R. Co., 25 Tex. Civ. A. 8, 59 SW 844; St. Louis, etc., R. Co. v. Ricketts, 22 Tex. Civ. A. 515, 54 SW 1090.

[a] Instructions held erroneous.— (1) In an action by a female passenger for being carried beyond her station, where there is no pretense that the conductor treated her harshly, or with anything but polite consideration, when he discovered that she had been carried past the station, an instruction as to aggravating circumstances should not be given. Southern R. Co. v. Hobbs, 118 Ga. 227, 45 SE 23, 63 LRA 68. (2) And an instruction in such an action that failure to announce said station loud enough to enable the passenger to hear the announcement, or failure to back said train to said station for the passenger to alight after carrying her by was negligence, was erroneous, as, if the passenger was carried beyond the station by her own fault, the carrier no longer sustained any contractual relation to her and did not owe her the duty to back the train. Gulf, etc., R. Co. v. Bagby, (Tex. Civ. A.) 115 SW 858. (3) In an action against a street railroad for failure to stop a car and admit plaintiff as a passenger, an instruction that if the conduct of defendant's servants was not "insulting, and intentionally willful," although negligent, only nominal damages could be awarded, was objectionable as using the conjunction after the word "insulting." Godfrey v. Meridian Light, etc., Co., 101 Miss. 565, 569, 58 S 534.

[b] Instructions held not erroneous.-(1) A charge in an action for being carried past destination, that [a] Punitive damages. In an ac- the jury must find that defendant tion for damages for defendant's fail-negligently failed to stop long enough ure to stop its railway train at a flag for plaintiff to get off in safety, alstation in response to plaintiff's though not as comprehensive as it signal, it was proper to refuse to sub- might have been, was not erroneous. mit to the jury the question of puni- Louisville, etc., R. Co. v. Cornelius, tive damages, in the absence of 183 Ala. 203, 62 S 710. (2) In an acevidence sufficient to authorize a find- tion for injuries to a passenger reing that the engineer saw him and in- sulting from her being carried on the tentionally ran by, in violation of de- wrong train, the court's charge that, fendant's duty to the public and of if after the mistake was discovered plaintiff's rights. Thomas v. South- she asked to be carried to a certain ern R. Co., 122 N. C. 1005, 30 SE 343. point from which she could readily reach her intended destination, and this was refused, she might recover, did not charge that it was negligence not to grant her request. St. Louis Southwestern R. Co. v. Pruitt, 97 Tex. 487, 80 SW 72 [writ of err den (Civ. A.) 79 SW 598].

51. Magee v. Oregon R., etc., Co., 46 Fed. 734; Smith v. Wilmington, etc., R. Co., 130 N. C. 304, 41 SE 481; Ussery v. Augusta-Aiken R. Co., 79 S. C. 209, 60 SE 527.

[c] Instruction on exemplary dam

[a] Proof of contract.-Where a tortious breach of contract is the gravamen of the action, a failure to prove the contract will justify a non-ages.-(1) Held erroneous in an action suit. Magee v. Oregon R., etc., Co., 46 Fed. 734.

52. See generally Trial [38 Cyc 1594].

53. Ala.-Louisville, etc., R. Co. v. Cornelius, 183 Ala. 203, 62 S 710.

Ga.-Southern R. Co. v. Hobbs, 118 Ga. 227. 45 SE 23, 63 LRA 68; Southern R. Co. v. Cartledge, 10 Ga. A. 523, 73 SE 703.

Ky.-Louisville. etc.. R. Co. V. Ritchel. 148 Ky. 701, 147 SW 411. 41 LRANS 958, AnnCas1913E 517; Illinois Cent. R. Co. v. Fleming, 148 Ky. 473, 146 SW 1110; Baltimore, etc., R.

against carrier for carrying plaintiff beyond destination. Southern R. Co. v. Cartledge, 10 Ga. A. 523, 73 SE 703. (2) An instruction that, if the engineer of a train saw a signal to stop at a flag station, and the failure to stop was either willful or capricious on his part, punitive damages might be imposed, was erroneous for failing to state that the engineer understood the signal. Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417. (3) An instruction that, if the acts of defendant's servants were characterized by willfulness or capriciousness,

| punitive damages might be awarded, was erroneous for failing to state what acts were referred to and what servants were meant. Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417. (4) In an action for willful tort in refusing to stop a train at a station an instruction that, if the act of defendant was done wrongfully and recklessly, plaintiff would be entitled to recover exemplary damages by way of punishment by adding to the compensatory damages a sufficient sum to prevent defendant from doing a like wrong to anybody else is not erroneous as awarding compensatory damages on failure of plaintiff to prove the willful tort alleged. Reeves v. Southern R. Co., 68 S. C. 89, 46 SE 543. (5) Where in an action against a street rairoad for damages for failure to stop a car and admit plaintiff as a passenger plaintiff and one who accompanied him testified that they commenced signaling the car by waving their hands when it was a quarter of a mile distant, and continued until it passed, and that when it passed the motorman motioned to them and the conductor signaled them and laughed, and the motorman testified that they stood near the track talking, but gave no signal until he was even with them, an instruction on exemplary damages was warranted. Northern Texas Tract. Co. v. Peterman, (Tex. Civ. A.) 80 SW 535.

[d] Separation of races.-An instruction that plaintiff, a white passenger, could not recover for having been compelled to ride in a coach for colored people, if the conductor in good faith believed, and in the exercise of ordinary care could believe, that she was a colored woman, and he was not insulting to her, together with an instruction stating the converse, properly presented the law of the case. Louisville, etc., R. Co. v. Ritchel, 148 Ky. 701, 147 SW 411, 41 LRANS 958, AnnCas1913E 517.

54. Ala. Central of Georgia R. Co. v. Crane, 189 Ala, 538, 66 S 604. Ark. Chicago, etc., R. Co. v. Floyd, 115 Ark. 607, 171 SW 913; St. Louis, Southwestern R. Co. v. Knight, 77 Ark. 20, 88 SW 1035.

Ga.-Southern R. Co. v. O'Bryan, 112 Ga. 127, 37 SE 161.

Miss.-Yazoo, etc.. R. Co. V. Mitchell, 83 Miss. 179, 35 S 339; Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417; Yazoo, etc., R. Co. v. Smith, 82 Miss. 656, 35 S 168.

Tex.-Texas, etc., R. Co. v. Rea, (Civ. A.) 74 SW 939.

and

[a] Instructions held erroneous.(1) In an action against a railroad company for injuries alleged to have been sustained by a passenger who boarding a train that did not stop at the station to which he wished to go voluntarily left the same after it had passed the station about a mile and a half, and walked back, there was nothing to indicate that plaintiff had suffered any humiliation, hence an instruction authorizing the jury to award damages for humiliation was erroneous. St. Louis Southwestern R. Co. v. Knight, 77 Ark. 20, 88 SW 1035. (2) Where in an action by a passenger for damages because of defendant's failure to stop a train at a flag station the fireman testified that he also was keeping a lookout for signals as the train passed the station, a requested instruction that, if the engineer was keeping a proper lookout for signals and did not see the signal to stop, the jury should find for defendant, al

though they believed the signal was given, was properly refused. Yazoo, etc., R. Co. v. Mitchell, 83 Miss. 179, 35 S 339. (3) Where the testimony left it uncertain as to whether the engineer of a train saw a signal to stop at a flag station, and there was no proof that other employees saw the signal, an instruction that, if the engineer or other employees saw the signal to stop. and their failure to stop the train was either willful or capricious, punitive damages might be imposed, was erroneous. Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417.

55. Ala.-Birmingham R., etc., Co. v. Hatton, 187 Ala. 573, 65 S 934; Robertson v. Louisville, etc., R. Co., 142 Ala. 216, 37 S 831.

Ark.-Louisiana, etc., R. Co., V. Rider, 103 Ark. 558, 146 SW 849.

Miss.-Godfrey v. Meridian Light, etc., Co., 101 Miss. 565, 58 S 534.

Mo.-Henderson v. Metropolitan St. R. Co., 123 Mo. A. 666, 100 SW 1111. S. C.-Mulligan v. Southern R. Co., 84 S. C. 171, 65 SE 1040.

Tex.-International, etc., R. Co. v. Evans, 30 Tex. Civ. A. 252, 70 SW

351.

Va.-Norfolk, etc., R. Co. v. Stone, 111 Va. 730, 69 SE 927.

such person had acted with intent to defraud defendant and had participated in it, or knew that such person had acted as defendant's agent without authority so to do, was erroneous in that the jury might have been led to believe that plaintiff's knowledge of want of authority was not alone sufficient to defeat a recovery. Mexican Cent. R. Co. v. Goodman, (Tex. Civ. A.) 43 SW 580. (6) In an action for damages for failure to carry plaintiff to her destination, defendant's charges that it was not liable for the fact that plaintiff had no money after her fare was paid, or that because of her weakened condition she was unable to stand the trip and suffered a relapse, is misleading. Birmingham R., etc., Co. v. Hatton, 187 Ala. 573, 65 S 934. (7) Where a white passenger sued a carrier for compensatory damages, an instruction that, if the conductor forced her to ride in the car set apart for negroes, she was not limited to actual damages, but that her discomfort and humiliation could be considered, was improper as being misleading. Norfolk, etc., R. Co. v. Stone, 111 Va. 730, 69 SE 927.

[b] Instructions held not misleading: (1) In an action against a street railroad for carrying plaintiff, a passenger, beyond her destination. Henderson v. Metropolitan St. R. Co., 123 Mo. A. 666, 100 SW 1111. (2) Where in an action against a carrier for setting down a passenger before reaching his destination there was no claim that there was a forcible ejection, but that the trainman called the wrong station, a charge authorizing recovery for injuries caused by being "put off the train" before reaching his destination was not misleading as implying forcible ejection. Louisiana, etc., R. Co. v. Rider, 103 Ark. 558, 146 SW 849.

56. Miller v. King, 166 N. Y. 394, 59 NE 1114.

57. Miller v. King, 166 N. Y. 394, 59 NE 1114.

[a] Illustration.-Where plaintiff by mistake of a station agent boarded a train which did not stop at the place indicated by the ticket, and the conductor stopped the train on discovering the error, and ordered plaintiff to leave, in an action to recover damages for breach of contract of carriage, a charge that, "if there had been any circumstance of unnecessary humiliation or indignity, would have been an item of damage," is not erroneous, where the expression was evidently used, as shown by other parts of the charge, to differentiate cases of such character from the case at bar. Miller v. King, 166 N. Y. 394, 59 NE 1114.

[a] Instructions held misleading: (1) In an action against a railroad for damages sustained by a passenger by reason of having boarded the wrong car. Robertson v. Louisville, etc., R. Co., 142 Ala. 216, 37 S 831. (2) Where in an action against a railroad company for failure to stop a train at a flag station the evidence showed that the only signal to stop was made by a third person, an instruction submitting the question whether plaintiff signaled the train, and charging that if the train was signaled by a third person, and if the servants of the company saw, or by the exercise of ordinary care might have seen, plaintiff's signals, plaintiff should recover, was erroneous as calculated to confuse the jury. Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417. (3) In an action against a railroad company because of the delay of a train on which plaintiffs expected to travel, an instruction that notwithstanding the time-table, if an agent of the company made a positive statement to the purchaser of a ticket, informing him about his train, such statement would govern the contract as to the conditions mentioned in the timetable, and in such a case the jury might consider both in getting at the contract between the passenger and the railroad company, etc., was misleading, as it bound defendant to a guaranty of the schedule by an agent, even though the passenger knew that the agent had no authority so to do. Mulligan v. Southern R. Co., 84 S. C. 171, 65 SE 1040. (4) An instruction, in an action for injury to a passenger sustained while walking back to her destination after she had been carried by, that there could be no recovery if she voluntarily left the train, was properly refused as tend- [a] Illustrations.-(1) Where the ing to lead the jury to believe that, court charged that, if the failure to if she was not forcibly ejected, she stop a passenger train at a flag stacould not recover. Gulf, etc., R. Co. tion in response to a signal was willv. Bagby, (Tex. Civ. A.) 115 SW 858. ful, etc., on the part of the engineer. (5) A charge that there could be a the jury could award punitive damrecovery, although a certain person ages, it was error to refuse to charge intended to defraud defendant rail- at defendant's request that, if the road company in selling plaintiff engineer did not act maliciously, etc., tickets that defendant had refused to only actual damages could be recovaccept, unless plaintiff knew that ered. Yazoo, etc., R. Co. v. White, 82

it

58. Little Rock Tract., etc., Co. v. Trainer, 68 Ark. 106, 56 SW 789: Rock Creek Steamboat Co. v. Boyd, 111 Md. 189, 73 A 662; Yazoo, etc., R. Co. v. White, 82 Miss. 120, 33 S 970; Missouri, etc., R. Co. v. Morgan, 49 Tex. Civ. A. 212, 108 SW 724; St. Louis Southwestern R. Co. v. Rose, (Tex. Civ. A.) 93 SW 1105.

Miss. 120, 33 S 970. (2) Where in an action against a carrier for injuries to a female passenger there was evidence that the illness complained of was not caused by her being carried beyond her station, the failure to charge that there could be no recov ery if the illness was not proximately caused by her being carried beyond the station was erroneous, although the court charged in a general way on the subject. Missouri, etc., R. Co. v. Morgan, 49 Tex. Civ. A. 212, 108 SW 724. (3) In an action against a railroad company for damages caused by failure to stop its train at a certain station long enough to allow plaintiff to alight, a requested instruction that, if defendant's employee announced the station, and thereafter the train was stopped at the station a reasonably sufficient length of time for plaintiff to get off, and she delayed getting off because of waking her children, or talking to some other passengers, or from any other cause, and this delay was unknown to defendant, the carrier was not liable, should have been given; and the necessity of giving it was not obviated by a charge in general terms that, if the train had stopped a sufficient length of time to enable plaintiff by the use of reasonable dillgence to alight, the jury should find for defendant. St. Louis Southwestern R. Co. v. Rose, (Tex. Civ. A.) 93 SW 1105.

59. Norfolk, etc., R. Co. v. Stone, 111 Va. 730, 69 SE 927.

[a] Improper modification.-In an action against a carrier for requiring a white passenger to ride in a coach set apart for negroes, it was improper to modify instructions which precluded recovery if the conductor honestly believed that the passenger was a negro, by the clause unless plaintiff "made known to the said conductor that she was a white woman." Norfolk, etc., R. Co. v. Stone, 111 Va. 730, 69 SE 927.

60. Central of Georgia R. Co. v. Almand, 116 Ga. 780, 43 SE 67.

61.

North Alabama Tract. Co. v. Daniel, 3 Ala. A. 428, 57 S 120.

[a] Illustration.-In an action against a carrier for failure to discharge plaintiff at his destination, instructions that, if plaintiff left the car at the barn and started to walk home, he then ceased to be a passenger, and defendant owed him no further duty, and that plaintiff ceased to be a passenger when he got on the sidewalk, whether he left the car voluntarily or not, were properly refused, it being immaterial to the question whether defendant committed a breach of duty in failing to discharge plaintiff at his destination, and in wrongfully putting him off at another place. North Alabama Tract, Co. v. Daniel, 3 Ala, A. 428, 57 S 120.

62. Freeman v. Puckett, 56 Tex. Civ. A. 126, 120 SW 514; Davis v. Houston, etc., R. Co., 25 Tex. Civ. A. 8, 59 SW 844. 63. Ga.-Southern R. Co. V. O'Bryan, 112 Ga. 127, 37 SE 161. Ky. Strull v. Louisville, etc., R. Co., 76 SW 181, 25 KyL 678. Miss.-Yazoo, etc., R. Co. Mitchell, 83 Miss. 179. 35 S 339. N. C.-Story v. Norfolk, etc., R. Co., 133 N. C. 59, 45 SE 349.

V.

Tex.-Freeman v. Puckett, 56 Tex. Civ. A. 126, 120 SW 514.

Wash.-Sloan v. North American Transp., etc., Co., 24 Wash. 221, 64 P 150.

X. PERSONAL INJURIES

[§ 1294] A. Care Required and Liability of Carrier in General"9-1. General Rule. Although there is much conflict in the statements by the various courts and authorities as to the care required of a carrier in transporting passengers and its consequent liability,70 and although the carrier does not insure that the passenger will be carried safely,"1 reduced to the simplest form the general rule may be stated to be that the carrier is bound to exercise as high a degree of care, skill, and diligence in receiving a passenger, conveying him to his destination, and setting him down safely as the means of

69. Cross references: Carrying beyond station see supra §§ 1277, 1278.

Constitutionality of statutes:

As denial of equal protection of laws see Constitutional Law [8 Cyc 1078].

As deprivation of property without due process of law see Constitutional Law [8 Cyc 1099]. Contributory negligence see infra

SS 1481-1528.

and trespassers

on

freight trains see Railroads [33 Cyc 815 et seq].

Passengers in palace or sleeping cars see infra §§ 1534-1538. Passengers on ferries see Ferries [19 Cyc 508 et seq].

Passengers on scenic railways see Theaters and Shows [38 Cyc 268].

Passengers on vessels see Shipping [36 Cyc 334].

Master and servant; injuries to servant see Master and Servant [26 Cyc. 1580].

Municipal corporations, improper management of elevator see, Municipal Corporations [28 Cyc 1312]. Premises, machinery, and appliances, care required see infra §§ 13371347; 1371-1379.

Property in right of action see Property [32 Cyc 669]. Release from liability:

Generally see Release [34 Cyc 1039].

Validity of release in consideration of free passes see supra § 1158. Settlement for injuries obtained by false pretenses see False Pre

tenses.

Sleeping car company, liability over see Indemnity [22 Cyc 95 et seq]. Sunday traveling see Sunday [37 Cyc 574].

Unwholesome food served in dining cars see Food. 70.

See infra § 1295. 71. See infra § 1302.

72. Ala.-Orr V. Boockholdt, 10 Ala. A. 331, 65 S 430.

Ark. Little Rock Tract., etc., Co. v. Kimbro, 75 Ark. 211, 87 SW 121, 644: Little Rock, etc., R. Co. V. Miles, 40 Ark. 298, 48 AmR 10.

Del.-Elliott v. Wilmington City R. Co., 22 Del. 570, 73 A 1040.

Fla. Florida Southern R. Co. v. Hirst, 30 Fla. 1, 11 S 506, 32 AmSR 17, 16 LRA 631.

Ga. Daniels v. Western, etc., R. Co., 96 Ga. 786, 22 SE 956.

Ill-Chicago Terminal Transfer R. Co. v. Young, 118 Ill. A. 226.

Ind.-Grand Rapids, etc., R. Co. v. Ellison, 117 Ind. 234, 20 NE 135; Terre Haute, etc.. R. Co. v. Buck, 96 Ind. 346, 49 AmR 168; Kentucky, etc.. Bridge Co. v. Quinkert, 2 Ind. A. 244, 28 NE 338.

La. Le Blanc v. Sweet, 107 La. 368 31 S 766, 90 AmSR 303 (strictest diligence); Lehman V. Louisiana Western R. Co., 37 La. Ann. 705.

Md.-Baltimore, etc., R. Co. V. State, 60 Md. 449.

Mo.-Stauffer v. Metropolitan St. R. Co., 243 Mo. 305, 147 SW 1032; Goldsmith v. Holland Bldg. Co., 182 Mo. 597, 81 SW 1112; Willmott v. Corrigan Cons. St. R. Co., 106 Mo. 535, 17 SW 490; Smith v. St. Louis, etc., R. Co., 69 Mo. 32, 33 AmR 484; Van Cleve v. St. Louis, etc., R. Co., 137 Mo. A. 332, 118 SW 116.

N. J. Brackney v. Public Service Corp., 77 N. J. L. 1, 71 A 149.

N. Y.-Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 AmR 221 [aff 65 Barb. 32].

Oh.-Cleveland, etc., R. Co. v. Manson, 30 Oh. St. 451.

Pa-Laing v. Colder, 8 Pa. 479, 49 AmD 533; New York, etc., R. Co. v. Daugherty, 11 Wkly NC 437.

Tex.-St. Louis, etc., R. Co. v. Finley, 79 Tex. 85, 15 SW 266; Galveston City R. Co. v. Hewitt, 67 Tex. 473, 3 SW 705, 60 AmR 32.

Wash.-Jordan v. Seattle, etc., R. Co., 92 P 284.

Liability as affected by means of conveyance see generally infra §§ 1303-1307.

73. U. S.-Lee V. Kansas City Southern R. Co., 220 Fed. 863, 136 CCA 493; Behrens v. The Furnessia, 35 Fed. 798; The Oriflamme, 18 F. Cas. No. 10,572, 3 Sawy. 397.

Ala-Southern R. Co. v. Crowder, 130 Ala. 256, 30 S 592.

Cal.-Nilson v. Oakland Tract. Co., 10 Cal. A. 103, 101 P 413.

Del.-Eaton V. Wilmington City R. Co., 24 Del. 435, 75 A 369; Baldwin v. Peoples' R. Co., 23 Del. 81, 76 A 1088 [aff 72 A 979]; MacFeat v. Philadelphia, etc., R. Co., 21 Del. 52, 62 A 898.

D. C.-Carter V. McDermott, 29 App. 145, 10 LRANS 1103, 10 AnnCas 601.

Il-Chicago, etc., R. Co. v. Flexman, 103 Ill. 546, 42 AmR 33. Ind.-Pennsylvania Co. V. Dean,

92 Ind. 459; Terre Haute, etc., R. Co. v. Jackson, 81 Ind. 19; Cleveland, etc., R. Co. v. Newell, 75 Ind. 542; Jeffersonville, etc., R. Co. v. Parmalee, 51 Ind. 42; Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 17 AmR 719; Columbus, etc., R. Co. v. Powell, 40 Ind. 37: Jeffersonville, etc., R. Co. v. Riley, 39 Ind. 568; Evansville, etc., R. Co. v. Duncan, 28 Ind. 441, 92 AmD 322; Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Gillenwater v. Madison, etc., R. Co., 5 Ind. 339, 61 AmD 101; Lake Erie, etc., R. Co. v. Cotton, 45 Ind. A. 580, 91 NE 253; Kentucky, etc., Bridge Co. v. Quinkert, 2 Ind. A. 244, 28 NE 338. La.-Julien v. The Wade Hampton, 27 La. Ann. 377.

Mass.-Perkins

v. Bay State R. Co., 223 Mass. 235. 111 NE 717. Pa. Fearn v. West Jersey Ferry Co., 143 Pa. 122, 22 A 708, 13 LRA 366; Neslie v. Second, etc., St's. Pass. R. Co., 113 Pa. 300, 6 A 72.

Tex-Gulf, etc., R. Co. v. Overton, 101 Tex. 583, 110 SW 736, 19 LRANS 500 [rev (Civ. A.) 107 SW 71]; Kirkland v. Texas, etc., R. Co., (Civ. A.) 140 SW 505.

"Common carriers of passengers are responsible for any negligence resulting in injury to them, and are

required in the preparation, conduct and management of their means of conveyance, to exercise every degree of care, diligence and skill. which a reasonable man would use under such circumstances. This obligation is imposed on them as a public duty, and by their contract to carry safely, as far as human care and foresight will reasonably admit.' Freeman v. Wilmington, etc., Tract. Co., 26 Del. 107, 112, 80 A 1001. To same effect Prince v. International, etc., R. Co., 64 Tex. 144.

"The duty of a carrier is to safely carry passengers. This is a duty. but not an absolute one. It is true that carriers of passengers are not insurers of the safety of those whom they undertake to carry against all the risks of travel, but there nevertheless rests upon them this general duty of safely carrying. The adjudged cases, and the authors of textbooks, in stating the duty of carriers, state in general terms that they are under obligation to carry safely." Louisville, etc., R. Co. v. Kelly, 92 Ind. 371, 373, 47 AmR 149.

[a] Strict accountability.-"Common carriers of passengers should be held to a very strict accountability for any dereliction of legal duty which increases the hazards and dangers of travel." Carter v. McDermott, 29 App. (D. C.) 145, 160, 10 LRANS 1103, 10 AnnCas 601.

Proximate and remote cause generally see infra § 1392.

74. See statutory provisions. And see Taillon v. Mears, 29 Mont. 161, 74 P 421, 1 AnnCas 613.

[a] In Oklahoma under Rev. L. (1910) § 800 (Comp. L. [1909] § 429) a carrier of persons for reward must use the utmost care for their safe carriage and provide everything necessary therefor and exercise a reasonable degree of skill. Missouri, etc., R. Co. v. Vandivere, 42 Okl. 427, 141 P 799; St. Louis, etc., R. Co. v. Nichols, 39 Okl. 522, 136 P 159.

75. See infra § 1325.

76. Milwaukee, etc., R. Co. V. Arms, 91 U. S. 489, 23 L. ed. 374; The Steamboat New World v. King. 16 How. (U. S.) 469. 474, 14 L. ed. 1019; Pomroy V. Bangor, etc., R. Co., 102 Me. 497, 67 A 561; Campbell v. Duluth, etc., R. Co., 107 Minn. 358, 120 NW 375, 22 LRANS 190; Magrane v. St. Louis, etc., R. Co.. 183 Mo. 119, 81 SW 1158; Siegrist v. Arnot, 10 Mo. A. 197 [rev on other grounds 86 Mo. 200, 56 AmR 424]. See also Bailments § 57; Negligence [29 Cyc 422].

[a] "The distinctions in degrees of care, (1) such as 'slight,' ordinary,' or 'great,' is unscientific and impracticable, as the law furnishes no definition of these terms which can be applied in practice." Pomroy v. Bangor, etc., R. Co., 102 Me. 497. 499, 67 A 561. (2) "It is not accurate to say, as is often said, that certain classes of cases involve a relaxation in the degree of care exacted, or that they constitute exceptions to the general rule requiring supreme care. The degree of care is the