offered a passenger, on the ground that there was no reason for supposing that any such wrong would be committed. St. Louis, etc.. R. Co. v. Hatch, 116 Tenn. 580, 94 SW 671.

68

to the masses, among whom there will be different degrees of intelligence and politeness; differences in physical vigor and temperament. There is therefore, necessarily, a certain amount of rudeness, of haste, of selfish disregard of the nerves and of the comforts of others, to be met with wherever men and women conwhether upon railroad trains, in places of amusement or upon the streets of a city. Unless such conduct amounts to a breach of the peace the officers of the law can take no cognizance of it, and carriers are not bound to prevent it or liable in damages for its appearance about their stations or trains." Ellinger v. Philadelphia, etc., R. Co., 153 Pa. 213, 215, 25 A 1132, 34 AmSR 697.

[c] Statute.-Under a statute providing for the punishment of any person who while riding on a passenger train shall, to the annoyance of other passengers, use obscene or profane gregate, it is the duty of those in charge of a train either to remove a drunken negress who is profane and obscene or to have her arrested. Louisville, etc., R. Co. v. Bell, 166 Ky. 400, 179 SW 400.

64. International, etc., R. Co. v. Duncan, 55 Tex. Civ. A. 440, 121 SW 362.

65. Spohn v. Missouri Pac. R. Co., 101 Mo. 417, 14 SW 880; St. Louis, etc., R. Co. v. Mackie, 71 Tex. 491, 499, 9 SW 451, 10 AmSR 766, 1 LRA 667; Texas, etc., R. Co. v. Hughes, (Tex. Civ. A.) 41 SW 821.

"A railway company cannot subject passengers, even in a second class car, to noxious influences not necessarily nor ordinarily incident to such travel, but brought about by the wrongful acts of other passengers, which the company, by the exercise of proper care and due regard for the welfare of passengers, could prevent, without liability for injury resulting from such causes. The record shows that the wife of appellee was compelled to ride in a car full of tobacco smoke, which caused to her nausea; that she was compelled to ride where she could not avoid hearing rough, profane and obscene language, and witness acts of violence and drunkenness. These things carriers of passengers ought not to permit in vehicles in which they undertake to transport decent men, much less refined and delicate women; and if they do, when they could prevent them by the use of due care, they must respond in damages." St. Louis, etc., R. Co. v. Mackie, supra.

[a] A passenger may recover for mental suffering, unaccompanied by physical pain, caused by vulgar, profane, and indecent language of other passengers which might have been prevented by the employees of the carrier. Houston, etc., R. Co. v. Perkins, 21 Tex. Civ. A. 508. 52 SW 124. Generally as to damages for mental suffering see Damages [13 Cyc 39].

66. Graeff V. Philadelphia, etc., R. Co., 161 Pa. 230, 28 A 1107, 41 AmSR 885, 23 LRA 606; Ellinger v. Philadelphia, etc., R. Co., 153 Pa. 213, 25 A 1132, 34 AmSR 697; Barlick v. Baltimore, etc., R. Co., 41 Pa. Super. 87.

[a] Statement of and reasons for rule. "But protection against bad manners is not, SO far as I am aware, one of the duties owing by a carrier to its passengers. Rudeness

67. Ark.-Memphis, etc., R. Co. v. Trussell, 122 Ark. 516, 183 SW 981. Ga.-Hillman v. Georgia R., etc., Co., 126 Ga. 814, 56 SE 68, 8 AnnCas 222 and note.

Iowa.-Starr v. Chicago, etc., R. Co., 156 Iowa 311, 136 NW 524; Adams v. Chicago, etc., R. Co., 156 Iowa 31, 135 NW 21, 42 LRANS 373.

Mass.-Sullivan v. Old Colony R. Co., 148 Mass. 119, 18 NE 678, 1 LRA 513.

Wis.-Kline v. Milwaukee Electric R., etc., Co., 146 Wis. 134, 131 NW 427, AnnCas1912C 276 and note.

Ont.-Blain v. Canadian Pac. R. Co., 5 Ont. L. 334, 2 OntWR 76.

[a] Duty of conductor.-A passenger conductor must keep a vigilant supervision over a drunken and quarrelsome passenger to prevent him from injuring or annoying fellow passengers, and, to prevent injury or annoyance to fellow passengers, he should refuse to further carry such passenger. Kline v. Milwaukee Electric R., etc., Co., 146 Wis. 134, 131 NW 427, AnnCas1912C 276. 68. See supra § 1166.

69. Montgomery Tract. Co. V. Whatley, (Ala.) 44 S 538; Wachser v. Interborough Rapid Transit Co., 69 Misc. 346, 125 NYS 767.

[a] Illustration. If an intoxicated street car passenger weighing about two hundred and twenty-five pounds was unable to stand, and his condition was known to the conductor, the conductor was negligent toward other passengers in permitting him to walk up and down the aisle while the car was in motion. Montgomery Tract. Co. v. Whatley, (Ala.) 44 S 538.

70. Ala.-Montgomery Tract. Co. v. Whatley, 44 S 538.

Ind. Chicago, etc.. R. Co. V. Fisher, (A.) 110 NE 240.

Ky.-Louisville, etc., R. Co. v. McEwan, 51 SW 619, 21 KyL 487.

Md.-Baltimore, etc., R. Co. V. Rudy, 118 Md. 42, 84 A 241; United R., etc., Co. v. State, 93 Md. 619, 49 A 923, 86 AmSR 453, 54 LRA 942. N. Y.-Wachser V. Interborough

is a breach of no positive law. The Rapid Transit Co., 69 Misc. 346, 125 ordinary cars are, and must be, open NYS 767.

Pa-Pittsburg, etc., R. Co. v. Pillow, 76 Pa. 510, 18 AmR 424. Tex.-Galveston, etc., R. Co. V. Bell, (Civ. A.) 165 SW 1; Ft. Worth, etc., R. Co. v. Stewart, (Civ. A.) 146 SW 355.

[a] Illustrations.—(1) Where a passenger on a street car was drunk and disorderly, and ejected because he assaulted an unoffending passenger, it was negligence, for which the company is liable, to permit him to reënter the car, although the conductor had no reason to suppose he would assault the particular passenger whom he afterward killed, since it was defendant's duty equally to protect all its passengers. United R., etc., Co. v. State. 93 Md. 619, 49 A 923, 86 AmSR 453, 54 LRA 942. (2) The act of a conductor in dragging a drunken passenger through the car to a point near where a passenger who had made complaint against the drunken passenger was standing, and then leaving the car, following which the drunken passenger made an assault on the other, who, in protecting himself, shot and wounded an innocent fellow passenger, amounted to negligence. Galveston, etc.. R. Co. v. Bell, (Tex. Civ. A.) 165 SW 1.

71. Felton v. Chicago, etc., R. Co., 69 Iowa 577, 29 NW 618; Texas, etc., R. Co. v. Storey, 37 Tex. Civ. A. 156, 83 SW 852; Adderley v. Great Northern R. Co., [1905] 2 Ir. 378.

72. Ky. Chesapeake, etc., R. Co. v. Pruitt, 157 Ky. 133, 162 SW 781. Miss. Spinks v. New Orleahs, etc., R. Co., 106 Miss. 53, 63 S 190.

N. Y.--Putnam v. Broadway, etc., R. Co., 55 N. Y. 108, 14 AmR 190 [rev 36 N. Y. Super. 195]; Thomson V. Manhattan R. Co., 75 Hun 548, 27 NYS 608.

Pa.-Brehony v. Pottsville Union Tract. Co., 218 Pa. 123, 66 A 1006.

Tex.-Galveston, etc., R. Co. v. Long, 13 Tex. Civ. A. 664, 36 SW 485. [a] Danger not presumed from mere drunkenness. "It does not follow and cannot be presumed that because a man is drunk, and is, in that condition, offensive to others, as well by his demeanor as in his appearance, that he is a dangerous man, and that his presence imperils the safety of others; that because he is drunk he may violently assault or murder others without provocation." Putnam v. Broadway, etc., R. Co., 55 N. Y. 108, 118, 14 AmR 190.

[b] Placing an intoxicated passenger in the baggage car, instead of ejecting him from the train, is not such negligence as will make the company liable for an assault committed by the intoxicated passenger on a fellow passenger. Spinks v. New Orleans, etc., R. Co., 106 Miss. 53, 63 S 190.

[c] Requesting passengers to go into the baggage car to take care of a.n intoxicated passenger who has been placed there is not such negli

73

injury will result." But it is not liable for injuries due to the unnatural appearance and conduct of a lunatic, where its employees did not know, or with proper care could not have known, that such injuries were likely to be caused.74

[§ 1334] 2. Protection against Injuries from Other Third Persons. The carrier owes to a passenger the duty of exercising a high degree of care

gence as will render the company liable for an assault by the intoxicated man on one of the passengers. Spinks v. New Orleans, etc., R. Co., 106 Miss. 52, 63 S 190.

[d] Good faith of conductor-All reasonable presumptions will be indulged in favor of the bona fides of a conductor's acts under Ky. St. § 806, and Acts (1910) c 18, requiring conductors to prevent boisterous and riotous conduct and the drinking of intoxicants on trains. Chesapeake, etc.. R. Co. v. Pruitt, 157 Ky. 133, 162 SW 781.

73. Meyer v. St. Louis, etc., R. Co., 54 Fed. 116, 4 CCA 221 [aff 77 Fed. 150].

[a] Thus (1) a railroad company was held liable in damages where a passenger was killed by a man insane from drink, who imagined that he was going to be beaten and robbed, and who had been removed from a sleeping car to a forward car by the conductor and brakeman, because of his misconduct. King v. (2) Ohio, etc., R. Co., 22 Fed. 413. In an action brought by a personal representative to recover damages for the killing of her intestate by an insane fellow railroad passenger, Shiras, J., delivering the opinion of the court, said: "It cannot be disputed that Graeter's insanity such that he ought not to have been permitted to travel, unattended and unguarded, upon railway passenger trains.

was

If the defendant railway company became at any time chargeable with knowledge of Graeter's actual

company

condition, then certainly the company would be charged with the duty of doing whatever a high degree of care would demand for the protection of the other passengers upon the train. If the evidence failed to show that the company had become chargeable with knowledge of Graeter's actual condition at any time before the killing of Meyer, then no ground would exist for holding it responsible for the consequences of Graeter's act; but from the time the company had become chargeable with knowledge of his condition, then the obligation rested upon the company to do whatever was reasonably within its power for the protection of the others upon the train. Under such circumstances the owes a duty to the insane passenger, as well as to the others; and what action should be taken is, of course, dependent largely upon the circumstances of the particular case. If the safety and reasonable comfort of the other not be impassengers will periled thereby, the company may carry the insane person to the end of his journey, or he may be removed from the train at the first station where he may be properly cared for; but whether he be carried on the train a longer or a shorter distance, the company is bound, so long as he is on the train, to do whatever, in the way of restraint or isolation, is reasonably demanded for the safety and comfort of the other passengers." Meyer v. St. Louis, etc., R. Co., 54 Fed. 116, 123, 4 CCA 221 [aff 77 Fed. 150].

Ejection of disorderly or obnoxious passenger see supra 88 1165, 1166.

74. Louisville, etc., R. Co. V. Brewer, 147 Ky. 166, 143 SW 1014, 39 LRANS 647, AnnCas1913D 151 and note.

75. Ala. Nashville, etc., R. Co. v. Crosby, 183 Ala. 237, 245, 62 S 889 [cit Cyc]; Alabama City, etc., R. Co. v. Sampley, 169 Ala. 372, 53 S 142;

Irwin v. Louisville, etc., R. Co., 161 Ala. 489, 50 S 62, 135 AmSR 153, 18 AnnCas 772 and note.

Ark.-St. Louis, etc., R. Co. v. Wilson, 70 Ark. 136, 66 SW 661, 91 Am SR 74.

Ga.-Savannah, etc., R. Co. V. Boyle, 115 Ga. 836, 42 SE 242, 59 LRA 104; Valdosta St. R. Co. v. Fenn, 11 Ga. A. 586, 75 SE 984; Grimsley v. Atlantic Coast Line R. Co., 1 Ga. A. 557, 57 SE 943.

Il-McMahon v. Chicago City R. Co., 239 Ill. 334, 88 NE 223; Elgin, etc., Tract. Co. v. Wilson, 217 Ill. 47, 75 NE 436; Chicago, etc., R. Co. v. Pillsbury, 123 Ill. 9, 14 NE 22, 5 Am SR 483.

Ind.-Repp

v. Indianapolis, etc., Tract. Co., (A.) 109 NE 441. Iowa.-Cotant v. Boone Surburban R. Co., 125 Iowa 46, 99 NW 115, 69 LRA 982.

Ky. Louisville R. Co. v. Dott, 161 Ky. 759, 171 SW 438, LRA1915C 681 and note; Tate v. Illinois Cent. R. Co., 81 SW 256, 26 KyL 309.

Mass.-Seale v. Boston El. R. Co., 214 Mass. 59, 100 NE 1020; Hull v. Boston. etc., R. Co., 210 Mass. 159, 196 NE 58, 36 LRANS 406, AnnCas 1912C 1147: Glennen v. Boston El. R. Co., 207 Mass. 497, 93 NE 700, 32 LRANS 470.

Minn.-Fewings v. Mendenhall, 88 Minn. 336, 93 NW 127, 97 AmSR 519, 60 LRA 601.

Mo.-Farber

V. Missouri Pac. R. Co., 116 Mo. 81, 22 SW 631, 20 LRA 350; McQuerry v. Metropolitan St. R. Co., 117 Mo. A. 255, 92 SW 912.

N. J.-Exton v. New Jersey Cent. R. Co., 63 N. J. L. 356, 46 A 1099, 56 LRA_508 Taff 62 N. J. L. 7, 42 A 486, 56 LRA 508].

N. Y.-Weeks v. New York, etc., R. Co., 72 N. Y. 50, 28 AmR 104 and note; Lynch v. New York Cent., etc., R. Co., 8 App. Div. 458, 40 NYS 775. N. C.-Britton v. Atlanta, etc., R. Co., 88 N. C. 536, 43 AmR 749.

Pa.-Kennedy v. Pennsylvania R. Co., 32 Pa. Super. 623.

Tenn.-St. Louis, etc., R. Co. v. Hatch, 116 Tenn. 580, 94 SW 671.

Tex-Missouri, etc., R. Co. v. Gerren, 57 Tex. Civ. A. 34, 121 SW 905. Vt.-Dufur v. Boston, etc., R. Co., 75 Vt. 165, 53 A 1068.

[a] Degree of care. A carrier of passengers is charged with the highest degree of care and foresight consistent with the orderly conduct of its business in respect to the protection of its passengers from injuries resulting from its acts or omissions, from the acts or omissions of its employees, and from the acts of strangers who are under its control or direction; but it is charged with ordinary care and prudence only to guard against the lawless acts of third persons not under its direction or control. Fewings v. Mendenhall, 88 Minn. 336, 93 NW 127, 97 AmSR 519. 60 LRA 601.

[b] Where those in charge of a carrier's depot know, or by the exercise of ordinary care could know, of wanton injuries being inflicted on a passenger in its depot, and could by such care protect the passenger, the carrier is liable. St. Louis, etc., R. Co. v. Wilson, 70 Ark. 136, 66 SW 661, 91 AmSR 74; Tate v. Illinois Cent. R. Co., 81 SW 256, 26 KyL 309. [c] Abusive language.-The carrier is liable for mental suffering occasioned to a female passenger by abusive language addressed to her by the wife of the station agent in his hearing and on the premises, and without interference on his part.

or

[d] Going to baggage room.-A railroad company is liable for injuries to a passenger in going to the baggage room to get his baggage checked, although the dangers arose from the acts of intruders strangers, where the acts were so notorious that the employees of the company in charge of the depot and the passageways thereof, devoted to use of passengers, knew, or should have known, of such acts and the dangers therefrom. Exton V. New Jersey Cent. R. Co., 63 N. J. L. 356, 46 A 1099 [aff 62 N. J. L. 7, 42 A 486, 56 LRA 508].

the

[e] Acts of employee of express company.-A carrier Owes to passengers and others lawfully using its station platform the duty to protect them from dangerous habits of the employees of an express company in negligently moving trucks about the platform without warning. St. Louis; etc., R. Co. v. Shaw, 94 Ark. 15, 125 SW 654, 140 AmSR 98.

to

[f] Assault on a passenger by an intruder.-(1) Where a colored female passenger whose presence had been fellow pasobjected to by white sengers, and who had complained to the conductor because of insulting treatment by such fellow passengers, was assaulted by an intruder, and by him, with the aid of some of said white passengers, ejected from the train while the train hands were temporarily away on duty, and the conductor was in the baggage car, it was held that she could recover damages from the carrier. Ruffin, J., delivering the opinion of the court, said: "The carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for his own or his servant's neglect in this particular, when, by the exercise of proper care, the acts of violence might have been foreseen and prevented; and while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties. The liability of the defendant to the plaintiff grows not out of the fact that she was injured, but out of the failure of its servants to afford her protection, after they had reasonable grounds for believing that violence to her was imminent, and also out of their omission to see her righted after the commission of the assault upon her, and her forcible ejection from her seat." Britton v. Atlanta, etc., R. Co., 88 N. C. 536, 544, 43 AmR 749. (2) Where a carrier permits a person in a drunken condition to enter its waiting room, and he uses indecent language, and while armed with a knife makes an assault on a female passenger, the company is liable for the damages sustained thereby. Houston, etc., R. Co. v. Phillio, 96 Tex. 18, 69 SW 994, 97 AmSR 868, 59 LRA 392 [rev (Civ. A.) 67 SW 915]. (3) Where a negro entered the waiting room to procure a ticket and take passage on a train which was shortly to arrive, when he was assaulted, thrown out of the station, and shot by a stranger in the presence of the carrier's employees who did nothing to assist him, the carrier was guilty of a

76

prevented by those in charge of the conveyance.? This duty, however, arises only when the danger is actually foreseen in time to prevent it, or is of such a nature and under such circumstances that it might be anticipated;" and, in general, the carrier is not liable for the acts of third persons intruding into the waiting rooms or on the depot grounds, or within the cars, and causing injury to passengers, where the disorderly conduct which caused the injury could not have been anticipated,78 or where the carrier's employees, although knowing of the threatened danger, could not in the exercise of due care prevent it.79

Protection from mob; strikers.

A carrier may

be liable for injuries to a passenger by a mob allowed to go on its train or premises with the pur

breach of its duty to the negro as a passenger, and was responsible for his injuries. McCardell v. Gulf, etc., R. Co., (Tex. Civ. A.) 102 SW 941.

76. Wright v. Chicago, etc., R. Co., 4 Colo. A. 102, 35 P 196; Connell v. Chesapeake, etc., R. Co., 93 Va. 44, 24 SE 467, 57 AmSR 786, 32 LRA 792; Cobb v. Great Western R. Co., [1894] A. C. 419.

77. Southern R. Co. v. Hanby, 183 Ala. 255, 62 S 871; Nashville, etc., R. Co. v. Crosby, 183 Ala. 237, 62 S 889; Taylor v. Atlantic Coast Line R. Co., 78 S. C. 552, 59 SE 641. See also supra § 1332.

78. Ala.-Irwin v. Louisville, etc., R. Co., 161 Ala. 489, 50 S 62, 135 Am SR 153, 18 AnnCas 772; Western R. of Alabama v. Walker, 113 Ala. 267, 22 S 182; Batton v. South, etc., Alabama R. Co., 77 Ala. 591, 54 AmR 80.

Ga.-Savannah, etc.. R. Co. V. Boyle, 115 Ga. 836, 42 SE 242, 59 LRA 104.

Ind.-Winona, etc., R. Co. v. Rousseau, 48 Ind. A. 248, 93 NE 34, 1028; Lake Erie, etc., R. Co. v. Arnold, 26 Ind. A. 190, 59 NE 394.

Ky.-Louisville R. Co. v. Dott, 161 Ky. 759, 171 SW 438, LRA1915C 681 and note.

Mass.-Moriarty v. Boston, etc., R. Co., 202 Mass. 166, 88 NE 585; Ormandroyd v. Fitchburg, etc., R. Co., 193 Mass. 130, 78 NE 739, 118 AmSR 457; Stoddard v. New York, etc., R. Co., 181 Mass. 422, 63 NE 927.

Mich.-La Fond v. Detroit Citizens' St. R. Co., 131 Mich. 586, 92 NW 99. Mo.-Rice v. Chicago, etc., R. Co., 153 Mo. A. 35, 131 SW 374; Krone V. Southwest Missouri Electric R. Co., 97 Mo. A. 609, 71 SW 712.

Nebr.-Bevard v. Lincoln Tract. Co., 74 Nebr. 802, 105 NW 635, 3 LRANS 318 and note.

N. J.-Miller v. West Jersey, etc., R. Co., 71 N. J. L. 363, 59 A 13 [aff 79 N. J. L. 499, 76 A 973].

N. Y.-Clyde v. Brooklyn Union El. R. Co., 148 App. Div. 705, 133 NYS 1; Kirby v. Delaware, etc., Canal Co., 20 App. Div. 473, 46 NYS 777.

Pa. Fredericks v. Northern Cent. R. Co., 157 Pa. 103, 27 A 689, 22 LRA 306; Barlick v. Baltimore, etc., R. Co., 41 Pa. Super. 87.

S. C.-Taylor V. Atlantic Coast Line R. Co., 78 S. C. 552, 59 SE 641. Tex.-Missouri, etc.. R. Co. v. Brown, (Civ. A.) 158 SW 259.

Va.-Connell v. Chesapeake, etc., R. Co., 93 Va. 44, 24 SE 467, 57 Am SR 786, 32 LRA 792.

Eng. Murphy v. Great Northern R. Co., [1897] 2 Ir. 301. [a] Assault.-(1) A carrier is under no obligation to protect a passenger from the criminal assault of persons in no way connected with the carrier, and which assault there is no reason to anticipate. Rice v. Chicago, etc., R. Co., 153 Mo. A. 35, 131 SW 374; Missouri, etc., R. Co. v. Brown, (Tex. Civ. A.) 158 SW 259; Prokop v. Gulf, etc., R. Co., 34 Tex. Civ. A. 520, 79 SW 101. (2) A carrier has been held not to be liable for an unforeseen assault on a woman passenger by an intruder while the trainmen were absent from

the car. Segal v. western R. Co., 35 80 SW 233.

[b] Misplacing of switch. The carrier is not liable for the wrongful act of a stranger in misplacing a switch, where the act of such person could not have been anticipated. Keeley v. Erie R. Co., 47 HowPr (N. Y.) 256.

[c] Placing torpedo on track.The wrongful act of a stranger in placing a torpedo on the track of a street car, the explosion of which frightened a passenger so that she jumped from the car and was injured, does not render the company liable, unless it could reasonably have foreseen and guarded against such occurrence. Bevard v. Lincoln Tract. Co., 74 Nebr. 802, 105 NW 635, 3 LRANS 318.

[d] Carelessness of employee of another company.-A railroad company is not liable to one of its passengers for an injury received, while waiting for his train, by the carelessness of an employee of another company using the same station. Miller v. West Jersey, etc., R. Co., 71 N. J. L. 363, 59 A 13 [aff 79 N. J. L. 499, 76 A 973]. See also supra § 1319.

[e] White person in negro coach. -The mere unauthorized presence of a white person in a negro coach is not a violation of any right of negro passengers, and gives them no cause of action against the carrier. Missouri, etc., R. Co. v. Brown, (Tex. Civ. A.) 158 SW 259.

79. Lake Erie, etc., R. Co. v. Arnold, 26 Ind. A. 190, 59 NE 394. 80. Chicago, etc., R. Co. v. Pillsbury, 123 III. 9, 14 NE 22, 5 AmSR 483; Indianapolis St. R. Co. v. Dawson, 31 Ind. A. 605, 68 NE 909; Glennen v. Boston El. R. Co., 207 Mass. 497, 93 NE 700, 32 LRANS 470; Kennedy v. Pennsylvania R. Co., 32 Pa. Super. 623.

[a] Illustration.-Where a street railroad owning a park reached by its lines, and maintaining attractions for the public there, has knowledge that there is a conspiracy on the part of certain persons to assault any colored persons visiting the park, and knows of acts of violence committed pursuant to such design, but it transports colored persons there without warning them of the danger, and they are assaulted, pursuant to the conspiracy, the company's employees making no attempt to interfere, the railroad company is liable for the injuries. Indianapolis St. R. Co. v. Dawson, 31 Ind. A. 605, 68 NE 909.

[b] Degree of care. In determining whether a street car company exercised the requisite degree of care to protect a passenger from injury from a crowd which rushed on the car at a public amusement place, the kind of assembly, and of the people likely to attend it, the time of the day, and the natural impatience and turbulence of a crowd boarding the car at such a place should all be considered. Glennen v. Boston El. R. Co., 207 Mass. 497,

[c] Students.-In an action against a railroad company to recover for injuries inflicted on an intending passenger by a crowd of students at the station, it is proper for the court to charge that: "If for a considerable time prior to the accident there was a large crowd of students and followers in the station, indulging in such boisterous conduct as manifestly threatened personal injury to passengers, and the defendant could, by the exercise of due vigilance, have ejected this mob or reduced it to order and con trol, before the plaintiff was injured, then its failure to do so renders it answerable to the plaintiff if she was subsequently injured by a rush of this crowd." Kennedy v. Pennsylvania R. Co., 32 Pa. Super. 623, 629.

81. Pittsburgh, etc., R. Co. V. Hinds, 53 Pa. 512, 91 AmD 224; Cobb v. Great Western R. Co., [1894] A. C. 419; Pounder v. North Eastern R. Co., [1892] 1 Q. B. 385.

82. See supra § 1309.

83. Chicago, etc., R. Co. v. Pillsbury, 123 III. 9, 14 NE 22, 5 AmSR 483; Fewings v. Mendenhall, 88 Minn. 336, 93 NW 127, 97 AmSR 519 and note, 60 LRA 601; Bosworth V. Union R. Co., 26 R. I. 309, 58 A 982, 3 AnnCas 1080.

[a] Thus, (1) where a passenger on a street car was struck and injured by a missile thrown by a member of a mob of striking employees of the street car company, the failure to pull down the blinds of the car in which the injured person was riding, or to stretch a heavy canvas over the outside of the car, was not negligence, justifying a recovery against the street car company. Fewings v. Mendenhall, 88 Minn. 336, 93 NW 127, 97 AmSR 519, 60 LRA 601. (2) Where a passenger on a street car was injured by stones thrown by strike sympathizers, the fact that on the morning of the day the injury occurred the governor had ordered out the militia to restrain violence toward the property and employees of the street railroad company, and had issued a proclamation calling on all persons riotously assembled to disperse, was not notice to

the street car company that it was dangerous to run its cars, but was rather an invitation to operate its road under the protection of the militia. Bosworth v. Union R. Co., 26 R. I. 309, 58 A 982, 3 AnnCas 1080. (3) But, where a passenger was injured during an attack made by a mob of striking workmen on certain other workmen who were being carried from their work on one of defendant's regular passenger trains, and previous attacks, of which defendant's agents knew, had been made by the strikers on the same workmen, and no unusual precautions were taken to protect passengers on this train, the injured passenger could recover, as the danger might have been reasonably anticipated and the injury prevented by taking extraordinary precaution

must avert it if possible, but any suggestions from passengers as to what the conductor shall or shall not do merely carries knowledge to the conductor of the danger, and does not affect the company's liability.84

Protection from police officers. Where a known officer of the law in the apparent exercise of his official authority disturbs the peace and personal security of a passenger, the carrier's employees are not bound to inquire whether he is acting officially and with lawful authority;85 and it is not their duty to intervene unless the officer's conduct is known to be unlawful.86 But the carrier is liable to a passenger for the acts of an officer whom its agents have requested to assist in ejecting undesirable persons.

87

[§ 1335] D. Act of God, Vis Major, or Inevitable Accident. The rules developed in connection

ary measures. Chicago, etc., R. Co. v. Pillsbury, 123 Ill. 9, 14 NE 22, 5 AmSR 483.

84. Louisville R. Co. v. Dott, 161 Ky. 759, 171 SW 438, LRA1915C 681. [a] Duty to move car.-The duty of a street car conductor to move his car to avoid threatened dangers from without the car is unaffected by requests of passengers to move the car, and any advice or suggestion from passengers as to what the conductor should or should not do cannot affect the liability of the company for injuries to a passenger struck by a missile thrown into the car. Louisville R. Co. v. Dott, 161 Ky. 759, 171 SW 438, LRA1915C 681. 85. Ala.-Nashville, etc., R. Co. v. Crosby, 70 S 7; Nashville, etc., R. Co. v. Crosby, 183 Ala. 237, 62 S 889.

Ark. Mayfield v. St. Louis, etc., R. Co., 97 Ark. 24, 133 SW 168, 32 LRANS 525.

Ga. Brunswick, etc., R. Co. V. Ponder, 117 Ga. 63, 43 SE 430, 97 AmSR 152, 60 LRA 713.

Tex.-Texas Midland R. Co. V. Dean, 98 Tex. 517, 85 SW 1135, 70 LRA 943 [rev (Civ. A.) 82 SW 524]. W. Va.-Anania v. Norfolk, etc., R. Co., 87 SE 167.

[a] Search.-Where a railroad's station agent did not instigate plaintiff's being searched for a stolen watch by an officer and another, the railroad was not liable to plaintiff, although the agent designated place in the station where the search might be made. Nashville, etc., R. Co. v. Crosby. (Ala.) 70 S 7.

a

86. Ala. Nashville, etc., R. Co. v. Crosby, 183 Ala. 237, 62 S 889.

Ark. Mayfield v. St. Louis, etc., R. Co., 97 Ark. 24, 183 SW 168, 32 LRANS 525 and note.

Ga.-Brunswick, etc., R. Co. V. Ponder, 117 Ga. 63, 43 SE 430, 97 AmSR 152, 60 LRA 713.

Ky-Louisville, etc.. R. Co. V. White, 152 Ky. 463, 153 SW 1199: Louisville, etc., R. Co. v. Byrley, 152 Ky. 35, 153 SW 36, AnnCas1915B 240 and note.

N. Y.-Burton v. New York Cent., etc.. R. Co., 147 App. Div. 557, 132 NYS 628 [aff 210 N. Y. 567 mem, 104 NE 1127 mem].

N. C.-Bowden v. Atlantic Coast Line R. Co., 144 N. C. 28, 56 SE 558, 12 AnnCas 783 and note; Owens v. Wilmington, etc., R. Co., 126 N. C. 139. 35 SE 259, 78 AmSR 642.

Tex.-Texas Midland R. Co. V. Dean, 98 Tex. 517, 85 SW 1135, 70 LRA 943 [rev (Civ. A.) 82 SW 524]. W. Va.-Anania v. Norfolk, etc., R. Co., 87 SE 167.

[a] Use of force.-Where a passenger is arrested while on a train, the carrier is under no duty to see that the officer uses only such force as is necessary to make the arrest. Mayfield v. St. Louis, etc.. R. Co., 97 Ark. 24, 133 SW 168, 32 LRANS 525; Brunswick, etc., R. Co. v. Ponder. 117 Ga. 63, 43 SE 430, 97 AmSR 152, 60 LRA 713; Carver v. Carolina, etc., R.

87.

88.

89.

88

Co., 169 N. C. 204, 85 SE 293. See supra § 1194. See supra §§ 132-134. See supra § 1302. [a] "Accident" and "injury" distinguished.--The word "accident" as applied to the operation of railroads ordinarily refers to an accident to the car, track, train, or machinery employed in the conveyance or appurtenances thereto, and not to any accident to the passenger, the word "injury" being generally applied to the effect on the passenger. O'Keefe v. Kansas City Western R. Co., 93 Kan. 262, 144 P 214.

90. U. S.-Southern Pac. Co. V. Schuyler, 135 Fed. 1015, 68 CCA 409 (washout of embankment).

Ala. Irwin v. Louisville, etc., R. Co., 161 Ala. 489, 50 S 62, 135 AmSR 153, 18 AnnCas 772.

Ark.-Little Rock Tract, etc, Co. v. Kimbro, 75 Ark. 211, 87 SW 121, 644.

Colo. Kansas Pac. R. Co. v. Miller, 2 Colo. 442; Denver, etc., R. Co. v. Andrews, 11 Colo. A. 204, 53 P 518. Del.-Eaton v. Wilmington City R. Co., 24 Del. 435, 75 A 369.

D. C.-Kight v. Metropolitan R. Co., 21 App. 494.

Ga.-Murphy v. Atlanta, etc., R. Co., 89 Ga. 832, 15 SE 774; Higgins v. Cherokee R. Co., 73 Ga. 149. Ill-Garneau v. Illinois Cent. R. Co., 109 Ill. A. 169.

Ind. Louisville, etc., R. Co. V. Thompson, 107 Ind. 442, 8 NE 18, 9 NE 357, 57 AmR 120; Cincinnati, etc., R. Co. v. Bravard, 38 Ind. A. 422, 76 NE 899.

Kan.-Topeka City R. Co. v. Higgs, 38 Kan. 375. 16 P 667, 5 AmSR 754. Ky-Louisville, etc., R. Co. V. O'Brien, 163 Ky. 538, 174 SW 31, Ann Cas1916E 1084 and note; Louisville, etc., R. Co. v. Peck, 152 Ky. 6, 153 SW 39, 49 LRANS 198.

Md.-Western Maryland R. Co. v. Shivers, 101 Md. 391, 61 A 618; Baltimore City Pass R. Co. v. Nugent, 86 Md. 349, 38 A 779, 39 LRA 161.

Minn.-Smith v. St. Paul City R. Co., 32 Minn. 1, 18 NW 827, 50 AmR 550.

Mo.-Hurck V. Missouri Pac. R. Co., 252 Mo. 39, 158 SW 581; Feary v. Metropolitan St. R. Co., 162 Mo. 75, 62 SW 452; Sawyer v. Hannibal, etc.. R. Co., 37 Mo. 240, 90 AmD 382; Gillespie v. St. Louis, etc., R. Co., 6 Mo. A 554.

Nebr. Bevard V. Lincoln Tract. Co., 74 Nebr. 802, 105 NW 635, 3 LRA NS 318.

N. J.-Sparks v. Citizens Coach Co., 6 N. J. L. J. 365.

N. Y.-Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 AmR 221 [aff 65 Barb. 32]; McPadden v. New York Cent. R. Co., 44 N. Y. 478, 4 AmR 705.

N. C.-Briggs v. Durham Tract. Co.. 147 N. C. 389, 61 SE 373.

Tenn. Illinois Cent. R. Co. V. Kuhn, 107 Tenn. 106, 64 SW 202. Tex.-International, etc., R. Co. v.

Halloren, 53 Tex. 46, 37 AmR 744 and note; Galveston, etc., R. Co. v. Crier, (Civ. A.) 100 SW 1177; Houston, etc., R. Co. v. Richards, 20 Tex. Civ. A. 203, 49 SW 687.

Va.-Norfolk, etc., R. Co. v. Marshall, 90 Va. 836, 20 SE 823.

Wash.-Topping v. Great Northern R. Co., 81 Wash. 166, 142 P 425, LRA1915F 1174.

Can.-Canadian Pac. R. Co. V. Chalifoux, 22 Can. S. C. 721.

"The law is very strict and stringent as to the duties it imposes upon common carriers for the safety of passengers; but there is no absolute warranty of safety imposed. There are certain risks and dangers to which passengers are necessarily exposed, for which the carrier is not, and ought not to be, liable. These are the casualties against which human sagacity cannot provide, nor the utmost prudence prevent. Every passenger must and does assume the risks incident to the mode of travel he selects, when they cannot be avoided or prevented by the utmost care and skill on the part of the carrier." Irwin v. Louisville, etc., R. Co., 161 Ala. 489, 492, 50 S 62, 135 AmSR 153, 18 AnnCas 772.

[a] Basis of rule.-"Non-liability for the results of an agency, causing an injurious accident, is premised, not upon the fact that such agency, or its manifestation, is unprecedented or unusual, but upon the fact that its consequences could not have been anticipated and guarded against by the exercise of reasonable care.' Louisville, etc., R. Co. v. Peck, 152 Ky. 6, 10, 154 SW 39, 49 LRANS 198.

[b] "The test of care or skill required in the methods, and use and operation of machinery and appliances, is the ordinary usage and methods that obtain and are observed in the particular business, as practiced by the average prudent man, professing knowledge of the business; and railroad companies form no exception to this rule. If. having exercised such skill and prudence in the performance of its business, and in the course of such performance, unforeseen accidents occur, negligence or unskillfulness cannot be imputed to it." Kight v. Metropolitan R. Co., 21 App. (D. C.) 494, 510.

[c] Snowslide.-A railroad company is not liable for injuries occasioned to a passenger by a snowslide in the mountains, which struck and derailed the train at a point on the road where a slide had never been known of before, and where there was no reason to anticipate one, since a snowslide in such a case was an inevitable accident. Denver, etc., R. Co. v. Andrews, 11 Colo. A. 204, 53 P 518.

91. Ala. Alabama Western R. Co. v. Walker, 113 Ala. 267, 22 S 182. Mass.-Gibson V. International Trust Co., 177 Mass. 100, 58 NE 278, 52 LRA 928.

degree of care and foresight required of carriers of passengers the cause of the accident could have been foreseen and the result thereof avoided, the carrier will be liable.92 The negligence of the carrier in such case, however, must be proximate and not remote as connected with the accident;93 but it has been held that the carrier is liable, although the immediate cause of the accident is an act of God, if the negligence of the carrier concurs in any degree in causing the injuries.9

94

Extreme weather conditions. A carrier is not guilty of such culpable negligence as will make it liable in damages, if it fails to provide against extraordinary and unprecedented storms, floods, or

N. C.-Pruett v. Southern R. Co., 164 N. C. 3, 80 SE 65, 49 LRANS 810 and note. AnnCas1915D 54 and note. Pa.-Wood v. Chester Tract. Co., 36 Pa. Super. 483.

R. I.-Moore v. Woonsocket St. R. Co., 92 A 980.

Protection against injuries from third persons see supra § 1334.

92. U. S.-Gleeson V. Virginia Midland R. Co., 140 U. S. 435, 11 SCt 859, 35 L. ed. 458; Ladd v. Foster, 31 Fed. 827, 12 Sawy. 547.

D. C.-Kight v. Metropolitan R. Co., 21 App. 494.

Ill. Sandy v. Lake Street El. R.
Co., 235 Ill. 194, 85 NE 300 [aff 137
Ill. A. 244].

Ind.-Indianapolis St. R. Co. V.
Schmidt, 163 Ind. 360, 71 NE 201.
Md.-Western Maryland R. Co. v.
Shivers, 101 Md. 391, 61 A 618.

Mo.-Ellet v. St. Louis, etc., R.
Co., 76 Mo. 518; Ward v. Kansas City
Southern R. Co., 189 Mo. A. 305, 175
SW 296.

S. C-Black v. Charleston, etc., R. Co., 87 S. C. 241, 69 SE 230, 31 LRA NS 1184.

Tenn.-Illinois Cent. R. Co. V. Kuhn, 107 Tenn. 106, 64 SW 202. Tex.-Texas, etc., R. Co. v. Barron, 78 Tex. 421, 14 SW 698; Missouri Pac. R. Co. v. Mitchell, 72 Tex. 171, 10 SW 411: Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, 10 SW 325; Chicago, etc., R. Co v. Cain, 37 Tex. Civ. A. 531, 84 SW 682; Missouri, etc., R. Co. v. Davidson, 25 Tex. Civ. A. 134, 60 SW 278; Gulf, etc., R. Co. v. Bell, 24 Tex. Civ. A. 579, 58 SW 614.

[a] Acts of employees.-The wrongful act, neglect, or default of the employees of a carrier cannot be treated as a vis major for which the carrier is not responsible in case of a resulting injury to a passenger. Western Maryland R. Co. v. Shivers, 101 Md. 391, 61 A 618.

[b] An act of God will not excuse a carrier from liability imposed by law, unless the injury could not have been prevented by any reasonable foresight or care. Black v. Charleston, etc., R. Co., 87 S. C. 241, 69 SE 230, 31 LRANS 1184.

[c] Stone on track.-A street railroad company is not free from liability for an accident to a car, caused by a stone on the track, unless it exercised the requisite care in running its car and avoiding the danger caused by the presence of the stone. Indianapolis St. R. Co. v. Schmidt, 163 Ind. 360, 71 NE 201.

93. Kight v. Metropolitan R. Co., 24 App. (D. C.) 494; Sawyer v. Hannibal, etc., R. Co., 37 Mo. 240, 90 AmD 382; Gillespie v. St. Louis, etc., R. Co., 6 Mo. A. 554; McClary v. Sioux City, etc., R. Co., 3 Nebr. 44, 19 AmR 631; Illinois Cent. R. Co. v. Kuhn, 107 Tenn. 106, 64 SW 202.

94. Sandy v. Lake Street El. R. Co., 235 Ill. 194, 85 NE 300 [aff 137 Ill. A. 244]; Chicago, etc., R. Co. v. Cain, 37 Tex. Civ. A. 531. 84 SW 682; Topping v. Great Northern R. Co.. 81 Wash. 166, 142 P 425, LRA1915F 1174.

95. Cal. Morris v. Southern Pac. Co., 168 Cal. 485, 143 P 708 (unprecented flood undermining track). Me.-Libby v. Maine Cent. R. Co., 85 Me. 34, 26 A 943. 20 LRA 812.

Mo.-Hurck V. Missouri Pac. R. Co., 252 Mo. 39, 158 SW 581; McPherson v. St. Louis, etc., R. Co., 97 Mo. 253, 10 SW 846; Ellet v. St. Louis, etc., R. Co., 76 Mo. 518.

N. Y.-McPadden V. New York Cent. R. Co., 44 N. Y. 478, 4 AmR 705 [rev 47 Barb. 247]; Connelly v. Manhattan R. Co., 68 Hun 456, 23 NYS 88 [rev on other grounds 142 N. Y. 377, 37 NE 462].

V.

Tex.-Missouri Pac. R. Co. Mitchell, 72 Tex. 171, 10 SW 411; Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, 10 SW 325; International, etc., R. Co. v. Halloren, 53 Tex. 46, 37 AmR 744.

Eng. Withers v. Great Northern R. Co., 1 F. & F. 165. Can.-Canadian Pac. R. Co. V. Chalifoux, 22 Can. S. C. 721.

[a] "The test of liability is not whether the company used such particular foresight as is evident, after the accident happened, might have averted it had the danger been known, but whether it used that degree of care and prudence which very cautious and prudent persons would have used under apparent circumstances of the case to prevent the accident. without reasonable knowledge that it was likely to occur. Bowen v. New York Cent. R. Co., 18 N. Y. 408, 72 AmD 529. 'In such case,' says Bramwell, B., Cornman v. Eastern Counties R. Co., 4 H. & N. 781, 157 Reprint 1050, 'it is always a question whether the mischief could have been reasonably foreseen. Nothing is so easy as to be wise after the event.'" Libby v. Maine Cent. R. Co., 85 Me. 34, 44, 26 A 943, 20 LRA 812.

in

un

[b] Broken rail.-(1) A railroad company is not liable for injuries to a passenger caused by the breaking of a rail from unusual and precedented weather conditions, under circumstances which could not have been anticipated or provided against. McPadden V. New York Cent. R. Co., 44 N. Y. 478, 4 AmR 705 [rev 47 Barb. 247]; Missouri Pac. R. Co. v. Mitchell, 72 Tex. 171, 10 SW 411; Canadian Pac. R. Co. v. Chalifoux, 22 Can. S. C. 721 (holding that, where the breaking of a rail is due to the severity of the climate, and the suddenly great variation of the degrees of temperature, and not to any want of care or skill on the part of the company in the selection, test[b] If the accident is due to the ing, and laying and use of such rail, act of the public enemy, the carrier the company is not liable for the de

[a] "If the accident is not the reasonable, natural, and probable result of the situation, which ought to have been foreseen by the company in the exercise of that degree of care exacted from a carrier of passengers, the company is not liable." Kight v. Metropolitan R. Co., 21 App. (D. C.) 494. 510.

breaking of such rail). (2) Where the break "was a sudden fracture brought about by cold weather, which the company did not have time to discover, and if defects in the track did not contribute to it, then the company was not liableprovided the rail before the accident was such as a person of competent skill might reasonably presume upon inspection to be free from liability to such fracture." Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, 102, 10 SW 325.

96. Libby v. Maine Cent. R. Co., 85 Me. 34, 42. 26 A 943, 20 LRA 812: Gillespie v. St. Louis, etc.. R. Co., 6 Mo. A. 554; Galveston, etc., R. Co. v. Crier, 45 Tex. Civ. A. 434, 100 SW 1177.

"A company would not be guilty of such culpable negligence as to make it liable in damages, if it failed to provide against such extraordinary and unprecedented storms, floods or other inevitable casualties caused by the hidden forces of nature, unknown to common experience, and which could not have been reasonably anticipated by that degree of engineering skill and experience required in the prudent construction of such railroad. In such case the injury cannot be held to be attributable to any fault or negligence of the company; it results from inevitable accident-vis major-the act of God." Libby v. Maine Cent. R. Co., supra.

[a] A cyclone which lifts a train from the track and wrecks it is an act of God, for which the carrier is not liable to a passenger who is inGalveston, etc., R. Co. v. jured. Crier, 45 Tex. Civ. A. 434, 100 SW 1177.

97. Ky.-Louisville, etc., R. Co. v. Peck, 152 Ky. 6, 153 SW 39, 49 LRA NS 198.

Me.-Libby v. Maine Cent. R. Co., 85 Me. 34, 26 A 943, 20 LRA 812. Mo.-McPherson v. St. Louis, etc., R. Co., 97 Mo. 253, 10 SW 846.

Tex.-Missouri Pac. R. Co. v. Johnson, 72 Tex. 95. 10 SW 325; Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 SW 722; International, etc., R. Co. v. Halloren, 53 Tex. 46, 37 AmR 744 and note.

Eng. Great Western R. Co. V. Fawcett, 1 Moore P. C. N. S. 101, 15 Reprint 640.

[a] Buckling of rails due to heat expansion in warm weather is not an unavoidable accident, so as to relieve the carrier from liability for injuries to a passenger. Chesapeake, etc., R. Co. v. Burke. 147 Ky. 694, 145 SW 370, AnnCas1913D 208 and note.

[b] Washout.-Where a passenger was injured by the derailment of a train by a washout from an unprecedented rainfall, the carrier was liable, where there was evidence that it was negligent in failing to provide sufficient openings for surface water through its embankment at the point in question. In this case the court said: "The time, volume, or intensity of the rainfall was not within the control of appellant. But, it knew of the existence of this vast watershed near where this wreck oc