ham R., etc.. Co. v. Baird, 130 Ala. 334, 30 S 456, 89 AmSR 43, 54 LRA 752. [c] Threats.-(1) A threat by a passenger to report the conduct of the employee does not justify the employee in assaulting the passenger. Sterneman v. Springfield Tract. Co., 178 Mo. A. 64, 163 SW 258. (2) The movement by a disorderly passenger who had been removed from the car, of his hand along his side to his hip pocket, did not justify the trainman in assaulting him, where such movement was accompanied by the statement, "I'll see you later." Norfolk, etc., R. Co. v. Brame, 109 Va. 422, 426, 63 SE 1018. [d] Passenger assaulted while checking baggage.—Where a passenger was struck with a hatchet by an employee of the railroad, whose duty it was to check trunks, in consequence of abuses and insulting remarks made by the passenger to said employee, it was held that the railroad company was not liable, on the ground that the act of the employee in thus assaulting the passenger was not within the scope of his employment. Little Miami R. Co. v. Wetmore, 19 Oh. St. 110, 2 AmR 373. 90. Texas, etc., R. Co. v. Williams, 62 Fed. 440, 10 CCA 463. [a] Illustration.-A carrier of passengers is liable for an assault committed by its conductor on a passenger, although the conductor was insulted by the passenger, if the insult was provoked by abusive language spoken by the conductor to the passenger. Texas, etc., R. Co. v. Williams, 62 Fed. 440, 10 CCA 463. 91. Heggen v. Ft. Dodge, etc., R. Co., 150 Iowa 313, 130 NW 148. [a] Statute.-Under a statute providing that any person who shall drink intoxicating liquor on railroad cars, or shall use profane language thereon, shall be guilty of a misdemeanor, the commission of such misdemeanor by a passenger does not justify or excuse the railroad for the act of its conductor in assaulting or mistreating the passenger. Heggen v. Ft. Dodge, etc., R. Co., 150 Iowa 313, 130 NW 148. 92. Ga.-Mason v. Nashville, etc.. R. Co., 135 Ga. 741, 70 SE 225, 33 LRANS 280 and note; Georgia R., etc., Co. v. Hopkins, 108 Ga. 324, 33 SE 965, 75 AmSR 39. Iowa-Fagg v. Minneapolis, etc., R. Co., 157 NW 148. Mo.-Mitchell v. United R. Co., 125 Mo. A. 1, 102 SW 661. N. Y.-Freedman v. Metropolitan St. R. Co., 89 App. Div. 486, 85 NYS 986. N. C.-Palmer v. Winston-Salem R., etc., Co., 131 N. C. 250, 42 SE 604. Tex.-Missouri, etc., R. Co. v. Gerren, 57 Tex. Civ. A. 34, 121 SW 905; Houston, etc., R. Co. v. Batchler, 37 Tex. Civ. A. 116, 83 SW 902. W. Va.-Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607, 67 SE 1103. See also infra § 1401. [a] Instruction.-Where the issue was whether the assault was committed under the influence of passion aroused by insulting words, an instruction was proper which required the jury to find both that sufficient time elapsed between the use of the insulting words by plaintiff and the time of the assault for cool reflection, and that the assault was the result of cool deliberation of the conductor, before they could ignore the mitigating effect of the insulting words by plaintiff to the conductor. Houston, etc., R. Co. v. Batchler, 37 Tex. Civ. A. 116, 83 SW 902. Circumstances affecting amount of damages generally see infra §§ 1400, 1401. 93. Central of Georgia R. Co. v. Motes, 117 Ga. 923, 43 SE 990, 97 Am SR 223, 62 LRA 507; Georgia R., etc.. Co. v. Hopkins, 108 Ga. 324, 33 SE 965, 75 AmSR 39; City Electric R. Co. v. Shropshire, 101 Ga. 33, 28 SE 508; Peavy v. Georgia R., etc., Co., 81 Ga. 485, 8 SE 70, 12 AmSR 334; Baker v. Brooklyn, etc., R. Co., 146 App. Div. 304, 130 NYS 690; Scott v. Central Park, etc.. R. Co., 53 Hun 414, 6 NYS 382; Rohrback v. Pennsylvania R. Co., 244 Pa. 132, 90 A 557; Missouri, etc., R. Co. v. Gerren, 57 Tex. Civ. A. 34, 121 SW 905. "It is undoubtedly true that a com mon carrier of passengers undertakes to protect passengers from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owed to the passengers. But it has not as yet been held that, where a passenger by his own misbehavior, while being transported, has provoked a personal encounter between himself and one of the employees of the carrier, that the carrier is liable for the results. It may be true that the use of the abusive language to the driver did not justify the assault, as far as the driver is concerned, in the eyes of the criminal law; but there is no reason for holding that where a passenger, by his own improper,and insulting behavior, while a passenger upon the road of the railway company, brings upon himself an assault, the carrier should be responsible." Scott v. Central Park, etc., R. Co., 53 Hun 414, 415, 6 NYS 382. [a] Contributory negligence. Where a passenger's conduct toward an employee is knowingly proferred with the specific purpose of bringing about a difficulty, and which in its probable result brings about a difficulty, it is such wrong on the passenger's part as requires the classification of his conduct as contributory negligence, although it may not amount to absolute justification for the assault which follows, and a passenger guilty of such contributory negligence cannot recover for such assault. Missouri, etc., R. Co. V. Gerren, 57 Tex. Civ. A. 34, 121 SW 905. 94. Illinois Cent. R. Co. v. Sheehan, 29 Ill. A. 90; Friar v. Orange, etc., R. Co., 45 Tex. Civ. A. 564, 101 SW 274; St. Louis Southwestern R. Co. v. Johnson, 29 Tex. Civ. A. 184, 68 SW 58; Texas, etc., R. Co. v. Edmond, (Tex. Civ. A.) 29 SW 518. 97 Co. v. Glenn, 179 Ala. 263, 60 S 111; Culberson v. Empire Coal Co., 156 Ala. 416, 47 S 237; Southern R. Co. v. Carroll, (A.) 70 S 984. Colo.-Bleecker v. Colorado, etc., R. Co., 50 Colo. 140, 114 P 481, 33 LRANS 386 and note. Ga.-Cole v. Atlanta, etc.. R. Co., 102 Ga. 474, 31 SE 107; Southern R. Co. v. Huckaba, 14 Ga. A. 311, 80 SE 697; Louisville, etc., R. Co. v. Chivers, 11 Ga. A. 236, 75 SE 13; Wolfe v. Georgia R., etc., Co., 2 Ga. A. 499, 58 SE 899. Ill. McMahon v. Chicago City R. Co., 239 Ill. 334, 88 NE 223_[aff 143 Ill. A. 608]; Chicago, etc., R. Co. v. Griffin, 68 T11. 499. Iowa. Bryan v. Chicago, etc., R. Co., 63 Iowa 464, 19 NW 295. Ky.-Illinois Cent. R. Co. v. Winslow, 119 Ky. 877, 84 SW 1175, 27 KyL 329; Louisville, etc., R. Co. v. Donaldson, 43 SW 439, 19 KyL 1384; Dawson v. Louisville, etc., R. Co., 4 KyL 731. La.-May v. Shreveport Tract. Co., 127 La. 420, 53 S 671, 32 LRANS 206; Block v. Bannerman, 10 La. Ann. 1. Me.-Goddard v. Grand Trunk R. Co., 57 Me. 202, 2 AmR 39. Md.-Baltimore, etc., R. Co. V. Blocher, 27 Md. 277. Miss.-Louisville, etc., R. Co. V. Patterson, 69 Miss. 421, 13 S 697, 22 LRA 259. Mo.-Malacek v. Tower Grove. etc., R. Co., 57 Mo. 17; Fornoff v. Columbia Taxicab Co., 179 Mo. A. 620, 162 SW 699; McGinnis v. Missouri Pac. R. Co., 21 Mo. A. 399. N. Y.-Gillespie V. Brooklyn Heights R. Co., 178 N. Y. 347, 70 NE 857, 102 AmSR 503, 66 LRA 618. But see Parker v. Erie R. Co., 5 Hun 57 (holding that a conductor was not acting in the discharge of his duty when he used insulting language to a passenger, and that for such conduct the carrier incurred no liability). Tex. St. Louis Southwestern R. Co. v. Hill, (Civ. A.) 103 SW 227; San Antonio Tract. Co. v. Lambkin, (Civ. A.) 99 SW 574. Que. Tudor v. Quebec, etc., R. Co., 41 Que. Super. 19. to "The carrier's obligation is carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe and comfortable. He must not only protect his passenger against the violence and insults of strangers and co-passengers, but a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, the contrary, the passenger is assaulted and insulted, through the negligence or the wilful misconduct etc., of the carrier's servant, the carrier 95. Insult and abuse in ejecting passenger see supra §§ 1193, 1194. 96. Binder v. Georgia R., etc., Co., 13 Ga. A. 381, 79 SE 216. [a] Illustration.-Where a street car passenger without provocation uses abusive language toward the motorman and incites him to use like language in return, the company cannot be held liable in damages for failure to protect the passenger from the motorman's abuse. Binder V. Georgia R., etc., Co., 13 Ga. A. 381, 79 SE 216. Justification of assault see supra § 1327. 97. Ala.-Birmingham R... on [§ 1329] 6. Acts of Employee as Police Officer; Special Officer. The conductor of a train, in looking after and protecting his passengers, is to some extent clothed with the powers of a police officer." But, although a conductor or other employee is clothed by law with police authority, that fact affords no immunity to the carrier for damages resulting from his wrongful discharge of his duty, either as employee of the carrier or under color of his police authority; and hence the carrier is liable for such employee's wrongful acts in carrying out the law requiring the separation of white and colored passengers, or in committing an assault or other wrong on a passenger. But it has been held yet purchased a ticket. Texas, etc., R. Co. v. Jones, (Tex. Civ. A.) 39 SW 124. is necessarily responsible." Goddard 90 SW 44. See also cases supra note "Among these recognized rights of the passenger, is not only to be safely and promptly carried to his destination, but to be treated by the servants and agents of the carrier with kindness, respect, courtesy, and due consideration, and to be protected against insult, indignity and abuse from both the agents and other passengers." McGinnis v. Missouri Pac. R. Co., 21 Mo. A. 399, 409. [a] Actionable insult.-In order that a passenger may recover for an insult given by the conductor of a street car, his acts must have been such as did not only humiliate and insult the passenger but such as would reasonably tend to humiliate any person in similar circumstances. Georgia R.. etc., Co. v. Baker, 1 Ga. A. 832, 58 SE 88. [a] Liability not dependent on negligence.-(1) The liability of a carrier for mental anguish suffered by a passenger in consequence of insults offered by its employees does not depend on its negligence in employing the employees or the scope of their authority, where the insults were offered while employed about the carrier's business. Gulf, etc., R. Co. v. Luther, 44 Tex. Civ. A. 517, 90 SW 44. (2) A passenger may recover from a carrier for the misconduct and insulting language of its conductor without proof that such misconduct and insulting language were "negligently done.' San Antonio Tract. Co. v. Davis, (Tex. Civ. A.) 101 SW 554. Ala. 248, 50 S 55. Ga. Savannah, etc., R. Co. v. Quo, 103 Ga. 125, 29 SE 607, 68 AmSR 85, 40 LRA 483. Ky.-Louisville, V. 1. U. S.-Nieto v. Clark, 18 F. Cas. No. 10,262, 1 Cliff. 145. Ala.-Birmingham R., etc., Co. v. [b] Time of speaking offensive Glenn, 179 Ala. 263, 60 S 111; Birwords. In an action against a rail-mingham R., etc., Co. v. Parker, 161 road company to recover for taking up and destroying plaintiff's ticket, and compelling him to pay cash fare, and for abusive language by the conductor, the fact that the offensive words were not spoken at the time of taking up the ticket and demanding cash fare, but a few minutes afterward, when change was given, is immaterial, as it was part of the same transaction, and took place while the conductor was discharging his official duty. Louisville, etc., R. Co. v. Donaldson, 43 SW 439, 19 KyL 1384. [c] Calling white man a negro.(1) It may be an insult for a conductor to call a white man a negro, or to intimate that a white man is of African descent, and, dependent on the circumstances, is actionable. Wolfe v. Georgia R., etc., Co., 2 Ga. A. 499, 58 SE 899. (2) To apply the term "negro" to a white person is humiliating and insulting, and a suggestive question, such as, "Don't you belong over there?" addressed to a white passenger by a conductor of a street car, who points to the seats reserved for negroes, is but little less so, and in either case, whether the language used is heard by others or not, the carrier is liable therefor in damages. May v. Shreveport Tract. Co., 127 La. 420, 53 S 671. 32 LRANS 206 and note. (3) But where a conductor, in enforcing a statute requiring conductors to separate white and colored passengers. mistakes a white man for a negro, the carrier is not liable if he used extraordinary diligence to prevent such mistake. Wolfe v. Georgia R., etc., Co., 2 Ga. A. 499, 58 SE 899. [d] Fraud imputed to passenger Threats used by the conductor to the passenger, imputing fraud, may be actionable. Louisville, etc., R. Co. v. Donaldson, 43 SW 439, 19 KyL 1384. 98. Bleecker v. Colorado, etc., R. Co., 50 Colo. 140, 114 P 481, 33 LRA NS 386; Knoxville Tract. Co. v. Lane, 103 Tenn. 376, 53 SW 557, 46 LRA 549. See also cases supra note 97. 99. Wolfe v. Georgia R., etc.. Co., 2 Ga. A. 499. 58 SE 899; Gulf, etc., R. Co. v. Luther, 40 Tex. Civ. A. 517, etc., R. Co. Bell, 166 Ky. 400, 179 SW 400; Louisville, etc.. R. Co. v. Ballard, 85 Ky. 307, 3 SW 530, 9 KyL 7, 7 AmSR 600. La. Haile v. New Orleans R., etc., Co., 135 La. 229, 65 S 225, 51 LRANS 1171, AnnCas1916C 1233. N. C. -Huffman v. Southern R. Co., 163 N. C. 171, 79 SE 307; Strother v. Aberdeen, etc., R. Co., 123 N. C. 197, 31 SE 386. Tenn.-Cincinnati, etc., R. Co. v. Harris, 115 Tenn. 501, 91 SW 211, 5 LRANS 779; Knoxville Tract. Co. v. Lane, 103 Tenn. 376, 53 SW 557, 46 LRA 549. Tex.-Missouri, etc., R. Co. v. Pope, (Civ. A.) 149 SW 1185; Carpenter v. Trinity, etc., Valley R. Co., 55 Tex. Civ. A. 627, 119 SW 335; St. Louis Southwestern R. Co. V. Granger, (Civ. A.) 100 SW 987; San Antonio Tract. Co. v. Crawford, (Civ. A.) 71 SW 306; Texas, etc., R. Co. v. Tarkington, 27 Tex. Civ. A, 353, 66 SW 137. Wis. Craker v. Chicago, etc., R. Co., 36 Wis. 657, 17 AmR 504. [a] Vulgar and offensive language.-(1) Language which, by common consent among civilized people, is vulgar, and offensive to ordinary female sensibilities, or disrespectful to the female presence, if indulged in by a carrier's employees or others in the presence or hearing of a female passenger, is actionable. Birmingham R., etc., Co. v. Glenn, 179 Ala. 263, 60 S 111. (2) The remarks of a conductor to a passenger that, if other conductors had carried her child without pay, he, if in her place, would not give them away, and would not tell it on them, are not open to the construction of charging her with undue intimacy with them. Carpenter v. Trinity, etc., R. Co., 55 Tex. Civ. A. 627, 119 SW 335. [b] Intending passenger.-A woman who enters a railroad station with the intention of becoming a passenger is entitled to protection against insult, although she has not 7 8 2. Birmingham R., etc., Co. V. Parker, 161 Ala. 248, 50 S 55. 3. U. S.-New York, etc., R. Co. v. Bennett, 50 Fed, 496, 1 CCA 544. Ala.-Widener v. Alabama Great Southern R. Co., 69 S 558. Ky.-Louisville, etc.. R. Co. v. Ballard, 85 Ky. 307, 3 SW 530, 9 KyL 7, 7 AmSR 600. Mass.-McCumber v. Boston El. R. Co., 207 Mass. 559, 93 NE 698, 32 LRANS 475. Mo.-Grayson v. St. Louis Transit Co.. 100 Mo. A. 60. 71 SW 730. N. C.-Rose v. Wilmington, etc., R. Co., 106 N. C. 168, 11 SE 526. V. S. C.-Daniels Florida Cent.. etc., R. Co., 62 S. C. 1, 39 SE 762. Tex.-Missouri, etc., R. Co. V. Kendrick. (Civ. A.) 32 SW 42. 4. False imprisonment see False Imprisonment [19 Cyc 3271. 5. Brown v. Atlantic Coast Line R. Co., 161 N. C. 573, 71 SE 777. Right to arrest or detain passenger generally see supra 1198. 6. Georgia R., etc., Co. v. Baker, 1 Ga. A. 832, 58 SE 88; Clish v. Boston, etc., R. Co., 219 Mass. 341, 106 NE 854; Southern R. Co. v. Grubbs, 115 Va. 876, 80 SE 749; Wilhelm v. Parkersburg, etc., R. Co., 74 W. Va. 678, 82 SE 1089. [a] Acting as employees.-Where a person occupying the dual position of public officer and employee of a carrier acts in the transaction in which he inflicts injury on a passenger in the capacity of an employee of the carrier, the question of liability is determined by the legal principles applicable in case of injury to a passenger by ordinary employees of the carrier. Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607. 67 SE 1103. [b] A statute giving officers of common carriers all the powers of conservators of the peace does not relieve a railroad company from liability for tortious acts of its employees while in the discharge of their duties. Wilhelm v. Parkersburg, etc., R. Co., 74 W. Va. 678, 82 SE 1089. 7. Wolfe v. Georgia, etc., Co., 2 Ga. A. 499, 58 SE 899; Georgia R., etc., Co. V. Baker, 1 Ga. A. 832, 58 SE 88. 8. Iowa.-Heggen V. Ft. Dodge, etc., R. Co., 150 Iowa 313, 130 NW 148. Mo.-Hedge v. St. Louis, etc., R. Co., 164 Mo. A. 291, 145 SW 115. Mont.-Rand v. Butte Electric R. Co., 40 Mont. 398, 107 P 87. Tex.-Texas, etc., R. Co. v. Bowlin, (Civ. A.) 32 SW 918. Va.-Southern R. Co. v. Grubbs, 115 Va. 876, 80 SE 749. [a] Illustration.-Under a statute providing that conductors may re that, where such employee is not liable to one for assault and battery, the carrier is not liable." A special officer appointed by the state for police duty at the expense of a railroad company is prima facie a public officer for whose acts, as such officer, the company procuring the appointment, and paying him for his services directly or indirectly, is not liable.10 Nevertheless, if such officer is engaged in some sort of service for the company and does a wrongful act in the course of such service, and within the scope of his employment, or by express direction of the company, the latter is liable therefor;11 hence, if such an officer in the performance of such services wrongfully inflicts injury on a passenger, the carrier is liable therefor, although the injurious act so done was willful and malicious, and prompted by motives and purposes personal to the employee.' A railroad responsible for the appointment of a special police officer cannot regard him as a de facto officer after his office is vacated by failure to take the oath, etc., since it is bound to know that he is an officer de jure before he is given employment on its trains." 13 12 [§ 1330] 7. Care as to Passengers under Disability -a. In General.18 The general rule as to the duty to care for the safety of the passenger is applicable in case of passengers who are suffering from some infirmity or disability,19 particularly where the employees of the carrier have no knowledge or reason to believe that the passenger is laboring under a disability.20 But the employees of a carrier are presumed to know that feeble and infirm persons may be passengers, and such a contingency should be taken into consideration, and if such persons are injured by negligence in operating the train they are entitled to recover, even though the injury would not have happened to a person in sound health.21 While the duty of the carrier to all passengers is the same in degree, the amount of care False imprisonment see generally | LRA1915A 395. False Imprisonment [19 Cyc 327]. Wash.-Morgan v. Bankers' Trust 11. Brewster V. Interborough Co., 63 Wash. 476, 482, 115 P 1047 Rapid Transit Co., 68 Misc. 348, [quot Cycl. 123 NYS 992; Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607, 67 SE 1103; McKain v. Baltimore, etc., R. Co., 65 W. Va. 233, 64 SE 18, 131 AmSR 964, 23 LRANS 289 and note, 17 AnnCas 634. Assisting officer. While every citizen is bound to assist a known public officer in making an arrest when called on so to do,1 yet, where a special rail 14 fuse to permit persons to enter the cars when intoxicated, or may eject such persons at regular stopping places, a conductor who uses violence toward such a passenger while he is in the car is acting solely as agent and employee of the railroad company, and not as a public officer of the state, for whose acts the company is not liable. Heggin v. Ft. Dodge, etc., R. Co., 150 Iowa 313, 130 NW 148. 9. Horgan v. Boston El. R. Co., 208 Mass. 287, 94 NE 386. 10. Chicago, etc., R. Co. v. Nelson, 87 Ark. 524, 113 SW 44; Pounds v. Central of Georgia R. Co., 142 Ga. 415, 83 SE 96; Foster V. Grand Rapids R. Co., 140 Mich. 689, 104 NW 380; Layne v. Chesapeake, etc., R. Co.. 66 W. Va. 607, 67 SE 1103; McKain v. Baltimore, etc., R. Co., 65 W. Va. 233, 64 SE 18, 131 AmSR 964, 23 LRANS 289 and note, 17 AnnCas 634 and note (under Code [1899] c 145 § 31 [Code (1906) § 4281]). [a] Acting as officer and not as servant. (1) A railroad company is not liable for the wrongful killing by a police officer paid by it, where the officer was not performing any service for it or by its direction, but was merely discharging his duties to the municipality. Pounds v. Central of Georgia R. Co., 142 Ga. 415, 83 SE 96. (2) A carrier is not liable to a passenger for an assault and battery by a special policeman appointed at its instance and paid by it, where not directed nor instigated by it, and founded on an alleged breach of the peace at one of its stations, in no way affecting or involving, so far as appears, any of its property, rights, or employees, nor growing out of any transaction between plaintiff and the company, although plaintiff was rightfully in the station, having a ticket and awaiting a train, and the alleged assault occurred on the company's premises. McKain v. Baltimore, etc., R. Co., 65 W. Va. 233. 64 SE 18, 131 AmSR 964, 23 LRANS 289, 17 AnnCas 634. [b] Where a special deputy sheriff paid by a street railroad company acts solely in his capacity as an officer in assaulting a passenger, and not by the direction of the conductor in charge of the car, the street railroad company is not liable for the act. Foster v. Grand Rapids R. Co., 140 Mich. 689, 104 NW 380. [10 C.J.-57] 13. Cincinnati, V. 14. See Arrest § 70. "Where the party making the ar- 16. Nashville, etc., R. Co. V. Crosby, 183 Ala. 237, 62 S 889. 17. Nashville, etc.. R. Co. V. Crosby, 183 Ala. 237, 62 S 889. 18. Ejecting person in helpless condition at improper time or place see supra § 1192. 19. Ark.-Price v. St. Louis, etc., R. Co., 75 Ark. 479, 492, 88 SW 575, 112 AmSR 79 [eit Cycl. V. Ky.-Louisville, etc.. R. Co. Brewer, 147 Ky. 166, 143 SW 1014, 39 LRANS 647, AnnCas1913D 151 and note. Mass.-Spade v. Lynn, etc., R. Co., Pa. Frega v. Philadelphia Rapid [a] Riding on platform.-Where a passenger riding on the front platform was injured by the explosion of the controller, and he was riding on the platform because of a stiff knee which rendered it dangerous for him to occupy a seat, a judgment of nonsuit was not error, defendant being under no obligation to provide special accommodations for persons so afflicted. Frega v. Philadelphia Rapid Transit Co., 245 Pa. 31, 91 A 222, LRA 1915A 395. 20. Wabash R. Co. v. Mathew, 199 U. S. 605, 26 SCt 752, 50 L. ed. 329 [aff 115 Mo. A. 468, 78 SW 271, 81 SW 646]; Winfrey v. Missouri, etc., R. Co., 194 Fed. 808. 114 CCA 218; Jacksonville St. R. Co. v. Chappell, 21 Fla. 175; Bageard v. Consolidated Tract. Co., 64 N. J. L. 316, 45 A 620, 81 AmSR 498, 49 LRA 424; Hollingsworth v. Southern R. Co., 72 S. C. 114, 51 SE 560. [a] Illustration.-Where a passenger was sick on a train, but made no complaint, and when the train was approaching her station the brakeman called out that station twice, whereupon she arose, and without knowing what she was doing left the train while in rapid motion, it showed no negligence on the part of the railroad. Hollingsworth V. Southern R. Co., 72 S. C. 114, 51 SE 560. 21. Ind. Cincinnati, etc.. R. Co. v. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334. 6 LRA 241. Md.-Baltimore, etc., R. Co. V. Leapley, 65 Md. 571, 4 A 891. Mass.-Yancey v. Boston El. R. Co., 205 Mass. 162, 91 NE 202, 137 AmSR 431, 26 LRANS 1217; Spade v. Lynn, etc., R. Co., 172 Mass. 488, 52 NE 747, 70 AmSR 298, 43 LRA 832. Mo.-Gillogly v. Dunham, 187 Mo. A. 551, 174 SW 118. Oh.-Toledo, etc., Tract. Co. V. McFall, 28 Oh. Cir. Ct. 362. V. S. C.-Talbert v. Charleston, etc., Va.-Shenandoah Valley R. Co. v. 22 may vary with the age, sex, or bodily infirmity of the passenger, greater care being required, for example, in regard to children of tender years than is necessary as to adults;23 and if a passenger's sickness or disability is known to some employee in charge of the train or premises, it is knowledge to the carrier, and the care received by him should be commensurate with his infirmities, and hence may be greater than that required as to an ordinary passenger;24 and it has been held that it is railroad company is liable for an | injury to a passenger who is physically weak because of a recent operation, due to the negligence of its employees in delaying its train without reasonable excuse for three hours, and in failing to notify the passenger of the delay or to exercise proper care for her safety or comfort, although such negligence would not have injured an ordinary passenger, and the company or its agents had no knowledge of the passenger's condition. Gulf, etc., R. Co. Redeker, 45 Tex. Civ. A. 312, 100 SW 362. V. [b] Passenger rendered helpless by negligence of carrier.-Where a passenger believing it to be the station for which he had taken passage endeavored to alight from the train in the usual manner, and the employees of the railroad without giving any warning or notice carelessly and negligently caused the train suddenly to be started, and the passenger without any fault on his part was thrown violently from the platform of the car on which he was standing to the track, which fall rendered him unconscious, and of this the employees had knowledge as well as of its cause, and soon after while the passenger was on the track in a dazed and partially unconscious condition the employees in charge of the train negligently, and without giving any signal or warning, or taking any precaution to avoid injuring the passenger, caused the train to run on him, thus causing his death without any fault or negligence on his part, the company was liable. Cincinnati, etc., R. Co, v. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334, 6 LRA 241. 22. Arkansas, etc., R. Co. v. Sain, 90 Ark. 278, 119 SW 659, 22 LRANS 910; Louisville R. Co. v. Wilder, 143 Ky. 436, 136 SW 892; Staines V. Central R. Co., 72 N. J. L. 268, 61 A 385; St. Louis, etc., R. Co. v. Finley, 79 Tex. 85, 15 SW 266. [a] The care may vary in its application to different persons, the strong and active not needing the same care to save them from injury as do children or persons under disabilities, and with the latter class it is the duty of those in charge to exercise the highest degree of care to discover persons laboring under disabilities and to exercise toward such the degree of care his situation and condition demands. Louisville R. Co. v. Wilder, 143 Ky. 436, 136 SW 892. [b] Trespasser or licensee. In the case of an injury to a trespasser or mere licensee on the property of a railroad, his age is immaterial on the question of defendant's negligence. Arkansas, etc., R. Co. v. Sain, 90 Ark. 278, 119 SW 659, 22 LRANS 910. 23. Ark.-Little Rock Tract., etc., Co. v. Nelson, 66 Ark. 494, 52 SW 7; St. Louis, etc., R. Co. v. Rexroad, 59 Ark. 180, 26 SW 1037. Kan.-Atchison, Flinn, 24 Kan. 627. etc., R. Co. V. Ky-Chesapeake, etc., R. Co. V. Smith, 162 Ky. 747, 172 SW 1088; Louisville R. Co. v. Wilder, 143 Ky. 436, 136 SW 892; South Covington, etc., R. Co. v. Quinn, 110 SW 404, 33 KyL 534. Mich.-East Saginaw City R. Co. v. Bohn, 27 Mich. 503. Nebr.-Dore v. Omaha, etc., St. R. the duty of the carrier's employees to use care to observe a passenger's condition.25 While a railroad company is not bound to accept for transportation without an attendant one who because of physical or mental disability is unable to take care of himself,26 yet if its employees voluntarily accept such a person, unattended, they should render to him such special care and assistance as his condition requires in order that he may safely be transported.27 Co., 97 Nebr. 250, 149 NW 793; Kruger v. Omaha, etc., St. R. Co., 80 Nebr. 490, 114 NW 571, 127 AmSR 786, 17 LRANS 101 and note. N. J.-Herbich v. North Jersey St. R. Co., 67 N. J. L. 574, 52 A 357 [rev 65 N. J. L. 381, 47 A 427]. N. Y.-Ryall v. Kennedy, 40 N. Y. Super. 347 [aff 67 N. Y. 379]. N. C.-Anderson v. Atlantic Coast Line R. Co., 161 N. C. 462, 77 SE 402. Oh.-Cleveland, etc., R. Co. v. Manson, 30 Oh. St. 451. Pa.-Pittsburg, etc., R. Co. v. Caldwell, 74 Pa. 421. Tex.-Denison, etc., R. Co. v. Carter, 98 Tex. 196, 82 SW 782, 107 AmSR 626 [rev (Civ. A.) 79 SW 320]. Wis.-Hemmingway V. Chicago, etc., R. Co., 72 Wis. 42, 37 NW 804, 7 AmSR 823. [a] Riding on platform.-If a boy passenger on a railroad train had intelligence enough to understand that it was more dangerous to ride on a car platform or on the step than inside the car, no duty devolved on the company to prevent him from so riding. Walling v. Trinity, etc., Valley R. Co., 48 Tex. Civ. A. 35, 106 SW 417. [b] Child traveling with parent. A girl seven years old, traveling with her mother, was at a water cooler which the conductor had just passed when the train suddenly stopped, and falling forward she placed one hand against the door facing her to save herself, and the conductor suddenly closed the door, catching her fingers and causing the injury complained of. The court instructed the jury that if the conductor saw the child at the cooler, or with reasonable diligence could have seen her there, and knowing that the train was about to stop closed the door negligently or carelessly and thereby caused the injury, defendant company was liable. The supreme court held that the instruction was erroneous in failing to state that the conductor had a right to rely on the mother's care of the child, and in requiring him to use reasonable diligence in seeing that she was not exposed to danger at the time she was injured. St. Louis, etc., R. Co. v. Rexroad, 59 Ark. 180, 26 SW 1037. [c] Where women and children are on the trains of a railroad company, it is the latter's duty to exercise the highest degree of care in their carriage, and further, it is the duty of the conductors in such instances not to direct them to go into places of danger without furnishing such assistance as will prevent accidents. Cleveland, etc., R. Co. v. Manson, 30 Oh. St. 451. 24. U. S.-Wabash R. Co. v. Mathew, 199 U. S. 605, 26 SCt 752, 50 L. ed. 329 [aff 115 Mo. A. 468, 78 SW 271, 81 SW 646]. Ky.-Louisville, etc., R. Co. V. Johnson, 168 Ky. 351, 182 SW 214, LRA1916D 514. N. H.-Foss v. Boston, etc., R. Co., 66 N. H. 256, 21 A 222, 49 AmSR 607, 11 LRA 367. Oh.- Toledo, etc., Tract. Co. V. McFall, 28 Oh. Cir. Ct. 362. Tex.-Gulf, etc., R. Co. v. Redeker, 45 Tex. Civ. A. 312, 100 SW 362. Wash. Sullivan v. Seattle Electric Co., 51 Wash. 71, 97 P 1109, 130 Am SR 1082. "It is well established rule that a physically disabled passenger shall receive such care as is commensurate with his infirmities, if such infirmities disable him from properly caring for his own safety, provided the carrier has knowledge of such infirmities." Louisville, etc., R. Co. v. Johnson, 168 Ky. 351, 360, 182 SW 214, LRA1916D 514. [a] Conductor.-(1) Where knowledge is communicated to the conductor of a train that a passenger is feeble and will need assistance in getting off, it amounts to notice to the carrier, and it is not necessary to notify every other conductor and train hand that may be in charge of the train. Foss v. Boston, etc., R. Co., 66 N. H. 256, 21 A 222, 49 AmSR 607, 11 LRA 367. (2) But it has been held that a street car conductor may presume that every passenger is sane and sober until he has actual notice to the contrary, and he is not required to make an examination to ascertain the condition of a passenger, and the doctrine of imputed notice is inapplicable. Sullivan v. Seattle Electric Co., 51 Wash. 71, 97 P 1109, 130 AmSR 1082. [b] Porter.-Where a porter on a train who is acting also as a brakeman is informed that a passenger because of a recent surgical operation is weak and debilitated and will require special care and attention, this is sufficient notice to the railroad company of the condition of the passenger. Gulf, etc., R. Co. V. Redeker, 45 Tex. Civ. A. 312, 100 SW 362. 25. Louisville R. Co. V. Wilder, 143 Ky. 436, 136 SW 892; Brackett v. Southern R. Co., 88 S. C. 447, 70 SE 1026, AnnCas1912C 1212; Talbert v. Charleston, etc., R. Co., 75 S. C. 136, 55 SE 138. But see Illinois Cent. R. Co. v. Cruse, 123 Ky. 463, 96 SW 821, 29 KyL 914, 8 LRANS 299 and note, 13 AnnCas 593 (holding that, since it is not the duty of the employees of a carrier to assist a passenger in alighting, because of her sickness or other misfortune, unless such condition is known to them, it is error to charge that it was their duty to assist her if her feebleness was known to them, "or was apparent," this implying that it was their duty to observe her condition to see whether she needed assistance). [a] The presence of a woman's menstrual period is not an abnormal condition like weakness due to disease of which defendant is entitled to special notice, but is a normal condition of which carriers must take notice, and for which they must provide reasonable accommodation. Brackett v. Southern R. Co., 88 S. C. 447, 70 SE 1026, AnnCas1912C 1212. 26. See supra § 1064. 27. U. S.-Meyer v. St. Louis, etc.. R. Co., 54 Fed. 116, 4 CCA 221 [aff 77 Fed. 150]. Ala.-Williams v. Louisville, etc., R. Co.. 150 Ala. 324, 326, 43 S 576, 10 LRANS 413 [cit Cyc]. Ark. Weirling v. St. Louis, etc., R. Co., 115 Ark. 505, 171 SW 901, AnnCas1916E 253. Colo.-Denver, etc., R. Co. v. Derry, 47 Colo. 584, 108 P 172, 27 LRANS 761. Ga.-Central of Georgia R. Co. v. Fleming. 13 Ga. A. 464, 79 SE 369. Il-Burke v. Chicago, etc., R. Co., 108 Ill. A. 565. Intoxicated passengers. The mere fact that a passenger is drinking, or is under the influence of liquor, is not enough to require the carrier's employees to give him any more care than they give to other passengers; 28 but where a carrier receives Ind. Cincinnati, etc., R. Co. V. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334, 6 LRA 241; Columbus, etc., R. Co. v. Powell, 40 Ind. 37. Ky.-Illinois Cent. R. Co. v. Allen, 121 Ky. 138, 89 SW 150, 28 KyL 108, 11 AnnCas 970 and note. Mich.-Mercer v. Cincinnati Northern R. Co., 151 Mich. 566, 115 NW 733. Minn.-Croom v. Chicago, etc., R. Miss.-Boyd v. Alabama, etc., R. Mo.-Gillogly v. Dunham, 187 Mo. A. 551, 174 SW 118; Layne v. Chicago, etc., R. Co., 175 Mo. A. 34, 41, 157 SW 850 [oit Cyc]; Trout v. Watkins Livery, etc., Co., 148 Mo. A. 621, 130 SW 136. N. C.-Anderson v. Atlantic Coast Line R. Co., 161 N. C. 462, 77 SE 402. S. C.-Horn v. Southern R. Co., 78 S. C. 67, 58 SE 963. Tenn. Memphis St. R. Co. V. Shaw, 110 Tenn. 467, 75 SW 713. Tex.-Chicago, etc., R. Co. V. Sears, (Civ. A.) 155 SW 1003; Adams V. St. Louis Southwestern R. Co., (Civ. A.) 137 SW 437; Chicago, etc., R. Co. v. Sears, (Civ. A.) 130 SW 1019; Gulf, etc., R. Co. v. Coopwood, (Civ. A.) 96 SW 102; International, etc., R. Co. v. Gilmer, 18 Tex. Civ. A. 680, 45 SW 1028. Wash.-Benson v. Tacoma R., etc., Co., 51 Wash. 216, 219, 98 P 605, 130 AmSR 1096 [quot Cyc]; Sullivan v. Seattle Electric Co., 51 Wash. 71, 97 P 1109, 130 AmSR 1082; Sullivan v. Seattle Electric Co., 44 Wash. 53, 86 P 786. [a] Care that reasonably prudent person would exercise.-(1) A carrier knowingly receiving a passenger suffering from an infirmity or illness must exercise all the care that a reasonably prudent person would to protect him from the dangers incident to his surroundings and mode of travel. Adams v. St. Louis Southwestern R. Co., (Tex. Civ. A.) 137 SW 437. (2) If a passenger is known to be in any manner affected by a disability, physical or mental, whereby the hazards of travel are increased, a degree of attention should be bestowed to his safety beyond that of an ordinary passenger, in proportion to the liability to injury from the want of it. Burke v. Chicago, etc., R. Co., 108 Ill. A. 565; Memphis St. R. Co. v. Shaw, 110 Tenn. 467, 75 SW 713. [b] A carrier is bound to render reasonable assistance to a passenger whose inability to take care of himself is made known to the carrier. Horn v. Southern R. Co., 78 S. C. 67, 58 SE 963. as a passenger a person who is known to its employees to be partially or entirely helpless on account of intoxication, it is bound to exercise such care and assistance as his condition reasonably requires for his safety,29 although the passenger's a liable.) Ejection at improper time or [e] Insane person.-(1) Where an the [f] Transportation in baggage car. While under Ga. Civ. Code (1910) §§ 2717-2719, and Pen. Code (1910) 539, it is the duty of the carrier who accepts a sick passenger to exercise diligence to provide for his safety and comfort, the carrier is not required to place such passenger in a baggage car, even though sick passengers have previously been placed in baggage cars by the carrier's conductors. Central of Georgia R. Co. v. Fleming, 13 Ga. A. 464, 79 SE 369. Assistance in boarding or alighting see generally infra §§ 1352, 1353. 28. Louisville, etc., R. Co. V. Gregory, 141 Ky. 747, 133 SW 805, 35 LRANS 317; Thixton v. Illinois Cent. R. Co., 96 SW 548, 29 KyL 910, 8 LRANS 298 and note; Paris, etc., R. Co. v. Robinson, 53 Tex. Civ. A. 12, 114 SW 658; McCormick v. Caledonian R. Co., 6 F. (Ct. Sess.) 362. [c] Protection after putting off train.-A carrier receiving a helpless, imbecile, or drunken person as a passenger, when unattended, owes him a duty commensurate with his condition, and must give him such care as will insure a safe passage to some proper destination, and cannot lawfully put him off or permit him to get off at a place where there is danger of his perishing or coming to harm, even though such place would be reasonably safe for one in a normal condition. Sullivan v. Seattle Electric Co., 44 Wash. 53, 86 P 786. But see Nash v. Southern R. Co., 136 Ala. 177, 33 S 932, 96 AmSR 19 (holding that, where an intoxicated passenger so demeans himself as to justify his ejection, and on reaching his destination in the night-pecial time leaves the train, and his body is found on the track under such circumstances as to show injury by another train which passed during the night, the railroad company, being under no obligation to guard the passenger through the night, is not [a] Reasons for rule.-"If a passenger on account of intoxication that does not produce helplessness or incapacity is rendered less capable of protecting himself from accident or injury than he otherwise would be or his condition induces him to become more indifferent to his safety, he must yet take the consequences of his own recklessness, and the company will not be charged with the duty of taking es care of him. His right to recover is no greater than would be that of a sober person of ordinary prudence. A man may be under the influence of liquor and yet be as competent to protect himself from danger as a thoroughly sober man would be. And it often happens that sober men expose themselves to dangers that a partially intoxicated man would avoid. And so there is good sense and reason in the rule that the sober man and the partially intoxicated man are entitled to the same measure of care-one not more than the other." Louisville, etc., R. Co. v. Gregory, 141 Ky. 747, 764, 133 SW 805, 35 LRANS 317. [b] Staggering drunk.-The fact that a passenger is "staggering drunk," but capable of transacting, with intelligence, important business, and with foresight to provide for his own safety, does not require the carrier to resort to extraordinary means to insure his safety, in the absence of knowledge of the carrier that the passenger is in, or is about to get in, a place of danger. Paris, etc., R. Co. v. Robinson, 53 Tex. Civ. A. 12, 114 SW 658. 29. U. S.-Winfrey v. Missouri, etc., R. Co., 194 Fed. 808, 114 CCA 218; Donovan v. Greenfield, etc., R. Co., 183 Fed. 526, 106 CCA 72. Ala.-Central of Georgia R. Co. v. Carleton, 163 Ala. 62, 51 S 27. Ark.-Price v. St. Louis, etc., R. Cal.-Doherty v. California Nav., Ky.-Louisville, etc.. R. Co. V. Gregory, 141 Ky. 747, 133 SW 805, 35 LRANS 317. Mich.-Kingston v. Ft. Wayne, etc., R. Co., 112 Mich. 40, 70 NW 315, 40 LRA 131 and note; Strand v. Chicago, etc., R. Co., 67 Mich. 380, 34 NW 712. Miss.-Yazoo, etc., R. Co. v. Smith, 64 S 158, 49 LRANS 917. N. H.-Wheeler v. Grand Trunk R. Co., 70 N. H. 607, 50 A 103. N. Y.-Milliman V. New York Cent., etc., R. Co., 66 N. Y. 642. N. D.-Haug v. Great Northern R. Co., 8 N. D. 23, 77 NW 97, 73 AmSR 727, 42 LRA 664. Pa.-Warren V. Pittsburgh, R. Co., 243 Pa. 15, 89 A 828. etc., S. C.-Pinson v. Southern R. Co., 85 S. C. 355, 67 SE 464. Tex.-Paris, etc., R. Co. v. Robinson, 140 SW 434 [rev (Civ. A.) 127 SW 294]; Paris, etc., R. Co. V. Robinson, 53 Tex. Civ. A. 12, 114 SW 658. Wash.-Benson v. Tacoma R., etc., Co., 51 Wash. 216, 98 P 605, 130 Am SR 1096; Sullivan v. Seattle Electric Co., 44 Wash. 53, 86 P 786; Lawson v. Seattle, etc., R. Co., 34 Wash. 500, 76 P 71. W. Va.-Fisher v. West Virginia, etc., R. Co., 39 W. Va. 366, 19 SE 578, 23 LRA 758. Ont.-Giles v. Great Western R. Co., 36 U. C. Q. B. 360. "The weakness of human nature that permits the appetite for intoxicants to be excessively indulged by men is as much a natural deformity as the man born with weak mentality, or defective sight or hearing, and whenever such person becomes intoxicated to the extent that he is incapacitated mentally and physically to care for himself, or rendered incapable of understanding or appreciating the danger incurred or produced by his acts, it devolves upon the servants of the carrier when the condition of such person is known to them to use the same care and precaution for his protection as is required of them in cases where the passenger has defective sight or hearing, or is so mentally weak as to be unable to care for himself, or to understand the natural consequences of his acts." Paris, etc., R. Co. v. Robinson, (Tex.) 140 SW 434. 437 [rev (Civ. A.) 127 SW 294]. "When a passenger is SO much |