evidence of negligence on the part of the company operating the car. Griffin v. Springfield St. R. Co., 219 Mass. 55, 106 NE 551. (2) But if this fact is supplemented by the testimony of witnesses who have special and unusual knowledge on the subject that, if an electric car starts with a sudden jerk of such force as to throw down a healthy woman while walking forward in the car, the cause is either the imperfect condition of the mechanism of the car or the improper handling of the controller by the motorman, there is evidence for the jury of negligence on the part of the railroad company. Griffin v. Springfield St. R. Co., supra.

[e] Rule not applicable.-The rule that a railroad company is not liable for injuries resulting from the swaying and lurching of a car, unless the swaying and lurching were unusual, is not applicable where the gravamen of the action is not laid as the swaying and lurching of the car. Teal v. St. Louis, etc., R. Co., 185 Ill. A. 33. 70.

Raines v. Chesapeake, etc., R. Co.. 68 W. Va. 694, 70 SE 711, 33 LRANS 583 and note.

71. Cal.-Yaeger v. Southern California R. Co., 5 Cal. Unrep. Cas. 870, 51 P 190.

Mo.-Todd v. Missouri Pac. R. Co., 126 Mo. A. 684, 105 SW 671.

N. J.-Corkhill v. Camden, etc., R. Co., 69 N. J. L. 97, 54 A 522.

N. Y.-Kantrowitz v. Metropolitan St. R. Co., 63 App. Div. 65, 71 NYS 394.

Oh.-Cleveland City R. Co. v. Osborn, 66 Oh. St. 45, 63 NE 604.

[a] Illustrations.—(1) Where the engineer of a passenger train failed to obey an order to stop at a station where plaintiff, a passenger on the train, alleged that it was to meet and pass a train going in the opposite direction, whereupon the conductor suddenly and violently stopped the train by the application of the air from the rear, throwing plaintiff against one of the seats and injuring her, defendant, although chargeable with negligence in passing the station, in violation of the order, causing the necessity for the sudden and violent stoppage in order to prevent collision, was not negligent in making the stop for that purpose. Todd v. Missouri Pac. R. Co., 126 Mo. A. 684, 105 SW 671. Where a motorman of an electric railroad started to cross an intersecting steam railroad after his conductor had used proper care to ascertain that no train was expected, and while crossing at a moderate speed a railroad train rounded the curve at a high rate of speed without warning, and a collision seemed imminent, and the motorman instantly applied all power and increased the speed, a verdict attributing negligence to the motorman on these facts, whereby a passenger was thrown to the floor of the car and injured, cannot be sustained. Corkhill v. Camden, etc., R. Co., 69 N. J. L. 97, 54 A 522.

(2)

72. La.-Basey V. Louisiana R., etc., Co., 137 La. 451, 69 S 824, LRA 1915E 964.

N. Y.-Dorr v. Lehigh Valley R. Co., 211 N. Y. 369, 105 NE 652, LRA 1915D 368, AnnCas1916C 763 [aff 152 App. Div. 342, 136 NYS 872].

Tenn.-Southern R. Co. v. Brooks, 125 Tenn. 260, 143 SW 62.

Vt.-Stewart V. Central Vermont R. Co., 86 Vt. 398, 85 A 745, 44 LRA NS 433.

Eng. Angus v. London, etc., R. Co., 22 T. L. R. 222.

[a] A statutory provision that,

whenever any person or animal appears on a track, every possible means must be employed to stop the train need not be observed where so to do will result in serious injury to passengers on the train. Southern R. Co. v. Brooks, 125 Tenn. 260, 267, 143 SW 62 (construing Shannon Code § 1574-1576, and where the court said: "The duty of railroad companies to safely carry and deliver their passengers is paramount to all others. They contract to do this, and public policy demands and requires a strict performance of the terms of the contract. This was so by the common law in force long before the enactment of the statute, and it was not the intention of the legislature to modify or abrogate the duty in favor of trespassers. We are of the opinion, and hold, that the precautions prescribed should not be observed, when to do so would imminently imperil the lives or limbs of passengers and employees on the train. The object of the statute is primarily to protect human life, and to construe it otherwise than here done would in many cases defeat that object. But less than imminent danger of serious bodily injury or death to those on the train will not excuse observance of the precautions, especially when the life of one on the road is involved. In other words, the probability of slight injuries to passengers and employees, or even serious injuries growing out of unusual positions which they may at the time occupy, will not excuse observance of the statute for the protection of the life of a trespasser. While not directly involved here, we do not think the safety of passengers should be jeopardized in any case to prevent injuries to animals upon the road. Humanity and public policy require that the duties of railroad companies to their passengers and to persons upon their roads be reconciled as far as possible to do so. No hard and fast rule can be made applicable to all cases. Each case where conflict presents itself must be determined upon its own particular facts. Where compliance with any particular provision of the statute, under attending conditions and environments, such as the speed of the train, a steep descending grade, a trestle or bridge, or other circumstance of peculiar danger, will imperil the lives or limbs of passengers with reasonable certainty, it should not be done. But where the place of the impending collision is level, or the speed of the train reasonably slow, or other conditions exist from which no great danger to passengers will ordinarily follow, or can be anticipated with reasonable certainty, usual conditions being considered, the statute must be observed, especially in favor of human life").

73. Dorr v. Lehigh Valley R. Co.. 152 App. Div. 342, 136 NYS 872 [aff 211 N. Y. 369, 105 NE 652, LRA1915D 368, AnnCas1915C 763 and note].

74. Dorr v. Lehigh Valley R. Co., 211 N. Y. 369, 105 NE 652, LRA1915D 368, AnnCas1916C 763 [aff 152 App. Div. 342, 136 NYS 872].

[a] The rule that the fireman need not notify the engineer of the presence near the track of a pedestrian, because the engineer may assume that he will leave, does not apply where the pedestrian is manifestly unconscious of the danger. Dorr v. Lehigh Valley R. Co., 211 N. Y. 369. 105 NE 652, LRA1915D 368, AnnCas1916C 763 [aff 152 App. Div. 342, 136 NYS 872].

75. U. S.-Kansas City Southern R. Co. v. Clinton, 224 Fed. 896, 140 CCA 340.

75

Ark. St. Louis Southwestern R. Co. v. Wyman, 119 Ark. 530, 178 SW 423; St. Louis, etc., R. Co. v. Coy, 113 Ark. 265, 168 SW 1106; Arkansas Southwestern R. Co. v. Wingfield, 94 Ark. 75, 126 SW 76.

Ga.-Georgia Cent. R. Co. v. Lippman, 110 Ga. 665, 36 SE 202, 50 LRA 673; Ball v. Mabry, 91 Ga. 781, 18 SE 64; Crine v. East Tennessee, etc., R. Co., 84 Ga. 651, 11 SE 555.

Ill. Chicago, etc., R. Co. v. Hazzard, 26 Ill. 373.

Ind.-Vandalia R. Co. v. Darby, (A.) 108 NE 778; Indiana, etc., R. Co. v. Masterson, 16 Ind. A. 323, 44 NE 1004.

Kan.-Chicago,

James, 100 P 641.

etc., R. Co. V.

Ky.-Illinois, etc., R. Co. v. Vinson, 74 SW 671, 25 KyL 38 [reh den 76 SW 167, 25 KyL 652]. Mich.-Frohriep

V. Lake Shore. etc., R. Co., 131 Mich. 459, 91 NW 748; Moore v. Saginaw, etc., R. Co., 115 Mich. 103, 72 NW 1112.

Minn.-Block v. Chicago, etc., R. Co., 132 Minn. 118, 155 NW 1072.

Mo.-Wait v. Omaha, etc.. R. Co., 165 Mo. 612, 65 SW 1028; Farmer v. St. Louis, etc., R. Co., 178 Mo. A. 579, 161 SW 327; Tickell v. St. Louis, etc., R. Co., 149 Mo. A. 648, 129 SW 727; Ray v. Chicago, etc., R. Co., 147 Mo. A. 332, 126 SW 543; Hawk v. Chicago, etc., R. Co., 130 Mo. A. 658, 108 SW 1119; Young V. Missouri, etc., R. Co., (A.) 84 SW 175, 113 Mo. A. 636, 88 SW 767; Holland v. St. Louis, etc., R. Co., 105 Mo. A. 117, 79 SW 508; Guffey v. Hannibal, etc., R. Co., 53 Mo. A. 462.

Okl-St. Louis, etc., R. Co. v. Gosnell, 23 Okl. 588, 101 P 1126, 22 LRA NS 892.

Wash.-Wile v. Northern Pac. R. Co., 72 Wash. 82, 129 P 889, LRA 1916C 355.

Ont.-Hutchinson v. Canadian Pac. R. Co., 17 Ont. 347.

[a] Other statement of rule.One who takes passage on a freight train will be presumed to understand that different cars, couplings, and brakes are used, and that cars must be coupled and shifted in the course of yard work at the various stations; that jars and jolts are incident to the ordinary management and necessarily affect the equilibrium of persons standing in the car. Moore v. Saginaw, etc., R. Co., 115 Mich. 103, 72 NW 1112.

[b] Illustrations.-(1) Where a passenger on a freight train is injured by a fall caused by a sudden jolt in the stopping of the train, but there is no evidence of any defect in the railroad tracks, train, or appliances, nor evidence tending to show any want of skill or care on the part of its employees in the management of its train, or that it was stopped in a negligent manner, there is no liability on the part of the railroad for such injuries. Portuchek v. Wabash R. Co., 101 Mo. A. 52, 74 SW 368. (2) A carrier is not liable for injuries to a passenger riding in a caboose, owing to the jar on the stopping of the train, where the jar is not sufficient to throw the passenger from his feet and there is no evidence of any defect in the construction of the railroad or train or of any negligence in the management thereof. Hedrick v. Missouri Pac. R. Co., 195 Mo. 104, 93 SW 268, 6 AnnCas 793.

[c] Switching.-"It is matter of common knowledge that freight trains in their switching operations at stations stop and start frequently, and that they must necessarily do so. Such trains are usually long, and the men in charge cannot uniformly be stationed either in or near the

82

to

Care required with reference passengers on freight trains see supra § 1304.

76. Ark. St. Louis, etc., R. Co. v. Coy, 113 Ark. 265, 168 SW 1106; Arkansas Southwestern R. Co. V. Wingfield, 94 Ark. 75, 126 SW 76; St. Louis, etc., R. Co. v. Gilbreath, 87 Ark. 572, 113 SW 200.

Ga.-Central of Georgia R. Co. v. Lippman, 110 Ga. 665, 36 SE 202, 50 LRA 673; Macon, etc., R. Co. V. Moore, 108 Ga. 84, 33 SE 889; Ball v. Mabry, 91 Ga. 781, 18 SE 64.

Ill. Illinois Cent. R. Co. v. Beebe, 174 Ill. 13. 50 NE 1019, 66 AmSR 253, 43 LRA 210 [aff 69 Ill. A. 363].

Ind.-Indiana, etc., R. Co. v. Masterson, 16 Ind. A. 323, 44 NE 1004. Kan.-Missouri Pac. R. Co. v. Holcomb, 44 Kan. 332, 24 P 467.

Mich. Moore v. Saginaw, etc., R. Co., 115 Mich. 103, 72 NW 1112.

Mo.-Richmond v. Missouri Pac. R. Co., 162 Mo. A. 422, 144 SW 168; Young v. Missouri, etc., R. Co., 84 SW 175 [aff 113 Mo. A. 636, 88 SW 767]; Holland v. St. Louis, etc., R. Co., 105 Mo. A. 117, 79 SW 508.

Okl.-St. Louis, etc., R. Co. v. Cox, 26 Okl. 331, 109 P 511.

Tenn.-Southern R. Co. v. Vandergriff, 108 Tenn. 14, 64 SW 481.

Tex.-Chicago, etc., R. Co. v. Buie, 31 Tex. Civ. A. 654, 73 SW 853; Ft. Worth, etc., R. Co. v. Rogers, 24 Tex. Civ. A. 382, 60 SW 61.

Wash.-Wile v. Northern Pac. R. Co., 72 Wash. 82, 129 P 889, LRA 1916C 355.

W. Va.-Kennedy v. Chesapeake, etc., R. Co., 68 W. Va. 589, 70 SE 359.

Wis.-Szezepanski v. Chicago, etc., R. Co., 147, Wis. 180, 132 NW 989. Care as to passengers on freight trains generally see supra § 1304.

[a] A passenger on a mixed train assumes the risk of usual and incidental jerks necessary to its operation, but not of the extraordinary jerks and jars resulting from the negligence of those operating the train. Wile v. Northern Pac. R. Co., 72 Wash. 82, 129 P 889, LRA1916C 355.

[b] Extraordinary diligence, as applied to a mixed train, and the jolts and jerks occurring in connection therewith, is that extreme care which very prudent and thoughtful persons would use on a like train under like circumstances. Southern R. Co. v. Cunningham, 123 Ga. 90, 50 SE 979.

[c] Illustrations.-(1) A passenger on a mixed train does not assume the risk of a jar occasioned by a collision between the cars after the parting of a coupling, although it is no greater than those which are customary. Holland v. St. Louis, etc., R. Co., 105 Mo. A. 117, 79 SW 508. (2) A railroad is liable to a passenger on a freight train for injuries caused by jerking the train, without

station platform at the end of the journey, and the passenger by direction of the conductor had risen in his seat to alight. St. Louis, etc., R. Co. v. Cox, 26 Okl. 331, 109 P 511. (3) Where defendant's conductor of a freight train on which plaintiff's horses were to be transported knew that plaintiff intended to ride in the car with the horses, and plaintiff was injured while the car was being switched, it was not material that the conductor had no actual notice that plaintiff was in the car when it was so roughly handled as to cause plaintiff's injury. Szezepanski Chicago, etc., R. Co., 147 Wis. 180, 132 NW 989.

V.

77. See generally Negligence [29 Cyc 434].

78. Tozier v. Haverhill, etc., R. Co., 187 Mass. 179, 72 NE 953.

79. Ill-Kelly v. Chicago, etc., R. Co., 175 Ill. A. 196.

Iowa.-Graham v. Chicago, etc., R. Co., 143 Iowa 604, 119 NW 708, 122 NW 573.

Mass.-Hooper v. Bay State St. R. Co., 218 Mass. 251, 105 NE 892; Tozier v. Haverhill, etc., R. Co., 187 Mass. 179, 72 NE 753.

Mo.-Willis v. St. Joseph R. Light, etc., Co., 111 Mo. A. 580, 86 SW 567.

N. Y.-Kantrowitz v. Metropolitan St. R. Co., 63 App. Div. 65, 71 App. Div. 394.

But see Lewark v. Parkinson, 73 Kan. 553, 85 P 601, 5 LRANS 1069 (holding that where proprietors of a line of hacks engaged in carrying passengers for hire are sued for damages sustained by a passenger in a runaway, caused by the team becoming frightened, an instruction is properly refused which charges that carriers are not liable for the mistaken exercise of judgment on the part of their employees in an emergency, nor for their failure to act with the utmost promptitude when circumstances afford no time for deliberation).

[a] Use of emergency brake.Where the use of an emergency brake will involve a substantial increase of hazard to passengers, and its use is not necessary to the rescue of a trespasser riding outside the vestibule door, a failure to use the emergency brake to stop the train is not negligence. Graham v. Chicago, etc., R. Co., 143 Iowa 604, 119 NW 708, 122 NW 573.

[b] Instances of no emergency.(1) Where an elevator containing a number of passengers becomes caught between the second and the third floors of a building so that it cannot be moved in either direction by the ordinary appliances, and is in no danger of falling so long as it is left in that condition, there is no such emergency as would relieve the owner from the duty of exercising the "highest degree of care and skill." Savage v. Joseph H. Bauland Co.. 42 App. Div. 285, 58 NYS 1014. (2) Where a female passenger on a street car, after the con

ductor gave one bell and the car slowed up, got on the running board ready to alight, but made no other move to alight, and the conductor then seeing her gave three bells to stop the car for fear she would step down, whereupon it was stopped with a jerk throwing her

off, the carrier is not absolved from liability for the conductor's negligence on the ground that he acted when the passenger was in apparent danger and for her safety, and that, if he made a mistake in judgment, it was not responsible therefor. Sheppard v. New York City R. Co., 56 Misc. 639, 107 NYS 553.

[c] The existence of a fight on street car between the conductor and a negro passenger, in which the conductor is stabbed, does not constitute such an emergency as justifies the motorman in stopping the car so suddenly as to disable its motive power and throw a passenger from the car and injure her. Willis v. St. Joseph R. Light, etc., Co., 111 Mo. A. 580, 86 SW 567.

80. Howell v. Lansing City Electric R. Co., 136 Mich. 432, 99 NW 406. 81. Duty to warn as to danger generally see supra § 1336.

82. Ala.-Central of Georgia R. Co. v. Brown, 165 Ala. 493, 51 S 565.

Ill.-Stuchly v. Chicago City R. Co., 182 Ill. A. 337; Union R., etc., Co. v. Shacklett, 19 Ill. A. 145 [aff 119 Ill. 232, 10 NE 896].

Ind.-Terre Haute Electric R. Co. v. Lauer, 21 Ind. A. 466, 52 NE 703. Mich.-East Saginaw City R. Co. v. Bohn, 27 Mich. 503.

N. J.-Grieve v. North Jersey St. R. Co., 65 N. J. L. 409, 47 A 427.

Okl.-Lane v. Choctaw, etc., R. Co., 19 Okl. 324, 91 P 883.

Tex.-International, etc., R. Co. v. Williams, 20 Tex. Civ. A. 587, 50 SW 732.

W. Va.-Norvell v. Kanawha, etc., R. Co., 67 W. Va. 467, 470, 68 SE 288, 29 LRANS 325 and note [cit Cyc].

B. C.-Dynes v. British Columbia Electric R. Co., 15 B. C. 429.

[a] Negligent failure to provide cars. (1) Where a carrier negligently and unreasonably fails to provide sufficient cars, so that the passengers are compelled to ride on the platforms, and the carrier then accepts passengers for carriage in such hazardous places, it is liable for damages to one injured therein, unless he has contributed to the injury by his own negligence. Norvell v. Kanawha, etc., R. Co., 67 W. Va. 467, 470, 68 SE 288, 29 LRANS 325 [cit Cyc]. (2) A street car company which permits its cars to become so overcrowded that passengers are required to ride on the steps is guilty of negligence. Stuchly v. Chicago City R. Co., 182 Ill. A. 337.

[b] In baggage car. To absolve itself from liability for injuries to a passenger riding in a baggage car, the carrier, in addition to adopting and posting in a conspicuous place in passenger cars printed rules and regulations forbidding, and warning passengers not to ride in such baggage cars, must provide such passenger with proper accommodations in a passenger car. Lane v. Choctaw, etc., R. Co., 19 Okl. 324, 91 P 883.

[c] The act of a conductor in requesting a passenger to go on the platform (1) because of the crowded condition of the coach or car, is an act done in managing the train. (Central of Georgia R. Co. v. Brown. 165 Ala. 493, 51 S 565), (2) and amounts to a direction to ride there (Terre Haute Electric R. Co. V. Lauer, 21 Ind. A. 466, 52 NE 703).

85

83

84

.88

83. Bridges v. Jackson Electric R., etc., Co., 86 Miss. 584, 38 S 788, 4 AnnCas 662.

84. Ervin v. Peoria R. Co., 179 Ill. A. 409; Anderson v. City, etc., R. Co., 42 Or. 505, 71 P 659.

85. Hogan v. Boston El. R. Co., 195 Mass. 313, 81 NE 198; Jackson v. St. Paul City R. Co., 74 Minn. 48, 76 NW 956; Pittsburg, etc., R. Co. v. Caldwell, 74 Pa. 421. See also Denison, etc., R. Co. v. Carter, 98 Tex. 196, 82 SW 782, 107 AmSR 626 [rev (Civ. A.) 76 SW 3201 (rule admitted but held not applicable to the facts of the case, where the question was one of negligence on the part of the motorman in causing the boy to jump from the car while in motion).

[a] The rear platform of a street car running fast is a place of danger for a boy riding thereon, and the failure of the conductor to compel him to go inside, or to stop the car and put him off, is negligence imputable to the company. Jackson v. St. Paul City R. Co., 74 Minn. 48, 76 NW 856.

86. Ala.-Birmingham R., etc., Co. v. Bynum, 139 Ala. 389, 36 S 736. Cal.-Griffin v. Pacific Electric R. Co., 1 Cal. A. 678, 82 P 1084.

Conn.-Rosenthal V. New York, etc., R. Co., 88 Conn. 65, 89 A 888, 51 LRANS 775; Hinckley v. Danbury, 81 Conn. 241, 70 A 590; Hesse v. Meriden, etc., Tramway Co., 75 Conn. 571, 54 A 299.

Ga.-Augusta R., etc., Co. v. Smith, 121 Ga. 29, 48 SE 681.

Ill-Math v. Chicago City R. Co., 243 Ill. 114, 90 NE 235; Lake Shore, etc., R. Co. v. Brown, 123 Ill. 162, 14 NE 197, 5 AmSR 510; Stuchly v. Chicago City R. Co., 182 Ill. A. 337; Madl v. Chicago City R. Co., 167 Ill. A. 487.

Ky. South Covington, etc., St. R. Co. v. Trowbridge, 163 Ky. 79, 173 SW 371; Louisville R. Co. v. Dott, 161 Ky. 759, 171 SW 438, LRA1915C 681.

Me. Blair v. Lewiston, etc., St. R. Co., 110 Me. 235, 85 A 792.

Mass.-Walsh v. Boston El. R. Co., 222 Mass. 275, 110 NE 278; Dewey v. Boston El. R. Co., 217 Mass. 599, 105 NE 366.

Mo.-Van Horn v. St. Louis Transit Co., 198 Mo. 481, 95 SW 326; Magrane v. St. Louis, etc., R. Co., 183 Mo. 119, 81 SW 1158: Parks v. St. Louis, etc., R. Co., 178 Mo. 108, 77 SW 70. 101 AmSR 425; Ely v. Southwest Missouri R. Co., 141 Mo. A. 708, 125 SW 833; Fleming v. St. Louis, etc., R. Co., 101 Mo. A. 217, 74 SW 382.

N. J.-Grieve v. North Jersey St. R. Co., 65 N. J. L. 409, 47 A 427; Scott v. Bergen County Tract. Co.. 64 N. J. L. 362, 48 A 1118 [aff 63 N. J. L. 407, 43 A 1060].

N. Y. Sheehan v. Nassau Electric R. Co.. 143 App. Div. 621, 128 NYS 545; Horan v. Rockwell, 110 App. Div. 522, 96 NYS 973; Lucas V. Metropolitan St. R. Co., 56 App. Div. 405, 67 NYS 833; Schaefer v. Union R. Co., 29 App. Div. 261, 51 NYS 431; Dillon v. Forty-second St.. etc., R. Co., 28 App. Div. 404, 51 NYS 145.

[10 C.J.-62]

Pa. Simkins v. Philadelphia Rapid Transit Co.. 244 Pa. 182, 90 A 527; Pildish v. Pittsburgh R. Co., 61 Pa. Super. 195; Renney v. Webster, etc., R. Co., 50 Pa. Super. 579; Brennan v. Schuylkill Tract. Co., 27 Pa. Super. 188.

R. I.-Verrone v. Rhode Island Suburban R. Co., 27 R. I. 370, 62 A 512, 114 AmSR 41.

Tex.-International, etc., R. Co. v. Cock, 68 Tex. 713, 5 SW 635, 2 Am SR 521; Beaumont Tract. Co. V. Happ, 57 Tex. Civ. A. 427, 122 SW 610; Galveston, etc., R. Co. v. Patillo, 45 Tex. Civ. A. 572, 101 SW 492.

W. Va.-Norvell v. Kanawha, etc., R. Co., 67 W. Va. 467, 68 SE 288, 29 LRANS 325.

[a] By riding in an unsafe place (1) a passenger does not forfeit his right to care. Willmott v. Corrigan Consol. St. R. Co., 106 Mo. 535, 16 SW 500, 17 SW 490. (2) The fact that a passenger on a street car assumes a dangerous position does not alter his character as a passenger, nor alter the degree of care that the carrier owes to him. Birmingham R., etc., Co. v. Bynum, 139 Ala. 389, 36 S 736.

[b] Excusably on platform.-(1) A carrier owes to a passenger involuntarily, necessarily, and rightfully riding on the platform of a car, the high degree of care commensurate with the circumstances and its act in undertaking to carry him there, but the liability of the carrier to one excusably riding on the platform is not absolute, and if it has used reasonable diligence to provide cars for his safe carriage, and, with fair excuse for failing to provide them, exercises the increased care demanded by the passenger's enforced position on the platform, it is not liable for injury to him while so riding. Norvell v. Kanawha, etc., R. Co., 67 W. Va. 467, 68 SE 288, 29 LRANS 325 and note. (2) Where a passenger is permitted to stand on the platform of a car, there is imposed on the carrier, the duty of handling the car with increased care, in view of his exposed position. Magrane v. St. Louis, etc., R. Co., 183 Mo. 119, 81 SW 1158. (3) Where a passenger from necessity rides the running sideboard of the car without objection, he is entitled to the same degree of diligence to protect him from dangers which are known or may readily be guarded against as are other passengers; that such a passenger gives his seat to a woman and voluntarily takes his place on the running board because there is no room within the car does not change the rule. Pildish v. Pittsburgh R. Co., 61 Pa. Super. 195.

on

[c] Where a passenger elects to ride on the platform of a street car when there is plenty of room inside, and is thrown from the car and killed before it reaches decedent's transfer point, the test of the carrier's liability is not the rule of care required of a passenger who is leaving the car at his destination, but the care required as to passengers at other points along the line. Ely v. Southwest Missouri R. Co., 141 Mo. A. 708, 125 SW 833.

[d] The conductor of a train represents the railroad company in relation to the transportation of passengers on his train, and his acts in receiving and carrying them on the platforms when the train is overcrowded bind the company. Norvell

v. Kanawha, etc., R. Co., 67 W. Va. 467, 68 SE 288, 29 LRANS 325.

[e] Speed immaterial.-Where the seat in a street car which a passenger occupies at the time of an accident is insecure, the conductor will be presumed to have knowledge thereof, and if the passenger is thrown from the car because of her insecure and dangerous position in connection with the swaying of the car, it is immaterial to her right to recover whether the car is running at an excessive rate of speed or not. Van Horn v. St. Louis Transit Co., 198 Mo. 481, 95 SW 326.

[f] Knowledge of passenger's position. Where the means of knowledge in relation to the position of a passenger is in the carrier, the same rule applies as when actual knowledge_exists. Griffin v. Pacific Electric R. Co., 1 Cal. A. 678, 82 P 1084.

87. St. Louis, etc., R. Co. v. Loyd, 109 Ark. 579, 160 SW 851; Augusta R., etc., Co. v. Smith, 121 Ga. 29, 48 SE 681; Graham v. McNeill, 20 Wash. 466, 55 P 631, 72 AmSR 121, 43 LRA 300.

[a] Waiver.-A rule prohibiting passengers from standing on platforms while the train or car is in motion is waived by a failure to provide sufficient accommodations for passengers inside the car. Graham v. McNeill, 20 Wash. 466, 55 P 631, 72 AmSR 121, 43 LRA 300.

88. Galveston, etc.. R. Co. v. Patillo, 45 Tex. Civ. A. 572, 101 SW 492. Passageway between cars; vestibules generally see supra § 1378.

89.

Hogan v. Boston El. R. Co., 195 Mass. 313, 81 NE 198. 90. Information to passengers generally see supra §§ 1229, 1230, 1244.

Misleading passenger as to place of stoppage being the proper one for boarding or alighting see supra §§ 1360. 1361.

91. Md.-Baltimore, etc., R. Co. v. Jean, 98 Md. 546, 57 A 540.

Mass.-Oddy v. West End St. R. Co., 178 Mass. 341, 59 NE 1026, 86 AmSR 482.

Mo.-Laub v. Chicago, etc., R. Co., 118 Mo. A. 488, 94 SW 550.

S. C.-Oliver v. Columbia, etc., R. Co., 55 S. C. 541, 33 SE 584.

Tex.-Missouri, etc., R. Co. v. Jahn, 18 Tex. Civ. A. 74, 43 SW 575.

Wash.-Bugge v. Seattle Electric Co., 54 Wash. 483, 103 P 824.

[a] In making announcements during the transportation intended to influence the actions of passengers, a carrier must observe such care as will make them intelligible to the different classes of people usually found in public conveyances and guard against possible misunderstanding. Laub v. Chicago, etc., R. Co., 118 Mo. A. 488, 94 SW 550.

[b] Carrier not negligent.-Where a passenger on a street car signaled the conductor to stop at the next stopping point, and the motorman

Thus

[§ 1391] 10. Duty to Injured Passenger. It is the duty of a carrier to render such care and attention as common humanity would dictate to a passenger who is injured in an accident.93 where a passenger falls or is thrown from a train or car, it is the carrier's duty to stop the train or car and to rescue him, if this can be done without endangering the safety of other passengers,94 and to take him with reasonable promptness to a place where he can receive proper treatment, procure others to render the necessary assistance, and if, instead of so doing, the carrier leaves him

stopped the car because he saw a fire engine approaching, and such passenger, under the misapprehension that the car had reached such stopping point, stepped into the street and was injured by a passing hose cart, since it was proper to stop the car, and not customary to notify passengers of the cause of a stoppage from an obstruction in the street, and as the conductor who was at the rear of the car, looking over the closed gate on the left-hand side, in order to see when the fire wagons had passed, was attending to his duty as required, the company was guilty of no negligence. Oddy v. West End St. R. Co., 178 Mass. 341, 59 NE 1026, 86 AmSR 482.

[c] Failure to inform as negligence. A railroad is negligent where the conductor in charge of the train fails to inform a passenger that there are coaches attached to the train in which he may continue his journey, and he is injured in alighting to change cars. Gulf, etc.. R. Co. v. Shelton, 30 Tex. Civ. A. 72, 69 SW 653. 70 SW 359 [aff 96 Tex. 301. 72 SW 165].

92. Southern R. Co. v. Roebuck, 132 Ala. 412, 31 S 611; Midland Valley R. Co. v. Hamilton. 84 Ark. 81, 104 SW 540; James v. Chicago, etc., R. Co., 81 Kan. 23, 105 P 40.

Stop after call of station see supra § 1361.

93. Cincinnati, etc.. R. Co. V. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334, 6 LRA 241; Yazoo, etc.. R. Co. v. Byrd, 89 Miss. 308, 42 S 286; Easler v. Columbia R., etc., Co., 100 S. C. 96, 84 SE 417, LRA1915D 883 and note.

[a] Protection from other train.-A railroad is bound to know that other trains are running on its own road, and it is under duty to a passenger who is thrown on its track to take steps to prevent injury to him from the danger which it knows that he is likely to incur from its trains. Cincinnati, etc., R. Co. V. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334, 6 LRA 241.

[b] Calling surgeon.-(1) A carrier need not call a surgeon where the natural guardian of an injured infant passenger is present and dissents from its calling a surgeon. Easler v. Columbia R., etc., R. Co., 100 S. C. 96, 84 SE 417, LRA1915D 883. (2) And where a carrier injuring an infant passenger refused to surrender him to his parent, but took him to the carrier's surgeon, it was liable for the surgeon's malpractice. Easler v. Columbia R., etc., Co., 100 S. C. 96, 84 SE 417, LRA1915D 883. Competency of physician or surgeon called see supra § 1308.

94. Reed v. Louisville, etc., R. Co.. 104 Ky. 603, 47 SW 591, 48 SW 416, 20 KyL 815, 990, 44 LRA 823; Brice v. Southern R. Co., 85 S. C. 216, 67 SE 243, 27 LRANS 768 and note.

[a] Duty on any officer of the train. That the conductor is in control of the train will not excuse any officer of the train who knows that a passenger has fallen from it from using the highest degree of care for the safety of the passenger, either

95

or to

96

717.

95. Yazoo, etc., R. Co. v. Byrd, 89 Miss. 308, 42 S 286.

96. Reed v. Louisville, etc., R. Co., 104 Ky. 603, 47 SW 591, 48 SW 416, 20 KyL 815, 990, 44 LRA 823.

97. Yazoo, etc.. R. Co. v. Byrd, 89 Miss. 308, 42 S 286.

98. Yazoo, etc., R. Co. v. Byrd, 89 Misc. 308, 42 S 286; Knepfle v. Cleveland, etc., R. Co., 32 Oh. Cir. Ct. 660.

"It matters not how negligent a passenger may have been in producing the injury for which he sues. Such negligence does not absolve the railroad from the duty which it owes him of proper attention after an accident shall have occurred, and if, when injured, the railroad company neglects this care, which common humanity would dictate, and by reason of this neglect, after the injury has occurred, a passenger suffers damage, he may recover against the railroad company for its dereliction." Yazoo, etc., R. Co. v. Byrd, 89 Miss. 308, 321, 42 S 286.

[a] Assistance rendered by others. -A railroad company is not guilty of negligence in failing to back up a passenger train and to render aid to a passenger who had, a short distance from the station to which he had taken passage, fallen off from the train, and where a brother and friends living in the same town knew of the accident before the trainmen, and were taking active measures for the relief of the passenger. Knepfle v. Cleveland, etc., R. Co., 32 Oh. Cir. Ct. 660.

99. Cross references: Generally see Damages [13 Cyc 25]. Acts of fellow passengers or other

third persons see supra §§ 13321334.

Acts of God, vis major, or inevitable accident see supra § 1335. Contributory negligence as proximate cause see infra § 1489.

1. See generally Negligence Cyc 505].

[29

2. Ark.-St. Louis, etc., R. Co. v. Pollock, 93 Ark. 240, 123 SW 790; St. Louis, etc., R. Co. v. Hook, 83 Ark. 584, 104 SW 217.

Del.-Freeman v. Wilmington, etc., Tract. Co., 26 Del. 107, 80 A 1001; Eaton v. Wilmington City R. Co., 24 Del. 435, 75 A 369; Baldwin v. People's R. Co., 23 Del. 81, 76 A 1088 [aff 23 Del. 383, 72 A 979].

Fla. Florida East Coast R. Co. v. Wade, 53 Fla. 620, 43 S 775.

Ill-Illinois Cent. R. Co. v. Kerr, 125 Ill. A. 363.

Iowa. Bloom v. Sioux City Tract. Co., 122 NW 831.

Mass.-Sanderson v. Boston El. R. Co., 194 Mass. 337, 80 NE 515.

Mo.-McGuire v. Chicago, etc., R. Co., 178 SW 79, LRA1915F 888; Newcomb v. New York Cent., etc., R. Co., 182 Mo. 687, 81 SW 1069; McFadden v. Metropolitan St. R. Co., 161 Mo. A. 652, 143 SW 884; Scott v. Metropolitan St. R. Co., 138 Mo. A. 196, 120 SW 131; Hensler v. Stix, 113 Mo. A.

Mont.-Taillon v. Mears, 29 Mont. 161, 74 P 421, 1 AnnCas 613 (rule applied to stagecoach proprietor).

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

N. Y.-Middleton v. Whitridge. 156 App. Div. 154, 141 NYS 104 [rev on other grounds 213 N. Y. 499, 108 NE 192, AnnCas1916C 856 and note]; Stevenson v. Joline, 127 App. Div. 181, 111 NYS 698; Horan v. Rockwell, 110 App. Div. 522, 96 NYS 973 (concurring acts of negligence of the carrier); Johnson v. Brooklyn Heights R. Co., 63 App. Div. 374, 71 NYS 568; Rusk v. Manhattan R. Co., 46 App. Div. 100, 61 NYS 384.

N. C.-Penny V. Atlantic Coast Line R. Co., 153 N. C. 296, 69 SE 238, 32 LRANS 1209.

Okl.-Shawnee-Tecumseh Tract. Co. v. Wollard, 153 P 1189; St. Louis, etc., R. Co. v. Criner, 41 Okl. 256, 137 P 705; Atchison, etc., R. Co. v. Calhoun, 18 Okl. 75, 89 P 207, 11 AnnCas 681.

Pa.-Bilotta v. Media, etc.. Electric R. Co., 220 Pa. 542, 70 A 123.

S. C.-Doolittle v. Southern R. Co., 62 S. C. 130, 40 SE 133.

S. D.-Reeves v. Chicago, etc., R. Co., 24 S. D. 84, 123 NW 498.

Tex. Bryning v. Missouri, etc., R. Co., (Civ. A.) 167 SW 826; Dallas Cons. Electric St. R. Co. v. Ison. 37 Tex. Civ. A. 219, 83 SW 408; St. Louis Southwestern R. Co. v. Keitt, (Civ. A.) 76 SW 311.

Va.-Board of Trade Bldg. Corp. v. Cralle, 109 Va. 246, 63 SE 995, 132 AmSR 917, 22 LRANS 297 and note; Connell v. Chesapeake, etc., R. Co., 93 Va. 44, 24 SE 467, 57 AmSR 786, 32 LRA 792; Reynolds v. Richmond, etc., R. Co., 92 Va. 400, 23 SE 770; Norfolk, etc.. R. Co. v. Williams, 89 Va. 165, 15 SE 522.

Wash.- -Anderson v. Northern Pac. R. Co., 88 Wash. 139, 152 P 1001; Rice v. Puget Sound Tract., etc., Co., 80 Wash. 47, 141 P 191.

W. Va.-Mannon v. Camden Interstate R. Co., 56 W. Va. 554, 49 SE 450.

Eng Cooper v. Caledonian R. Co., 4 F. (Ct. Sess.) 880.

"There must have been injury sustained by the passenger; there must have been negligence of the employe, such negligence must have been a proximate cause of the injury; there must have been no independent efficient cause intervening between the negligence of the employee and the injury to the passenger; the injury sustained must be such as should have been contemplated as a probable proximate result of the negligence. A proximate cause is one that directly causes, or contributes directly to causing the result, without any independent efficient cause intervening between the cause and the result or injury. The particular injury sustained need not have been in fact contemplated, but the injury sustained must be such as should have been contemplated as a natural and probable proximate result or con

cause producing the injury.3 The particular act of negligence relied on as constituting the grounds of recovery must have been the proximate cause of the injury. If the carrier or its employees were negli

sequence of the cause or negligence." Florida East Coast R. Co. v. Wade, 53 Fla. 620, 626, 43 S 775.

[a] Blocking station crossing.Where a railroad company is guilty of negligence in blocking with a freight train the station crossing, compelling persons desiring to take passage to choose some other route, and a person while on the way to the station sustains an injury, the railroad company is not liable, unless its negligence is the proximate cause of the injury, and the injury ought to have been foreseen in the light of attending circumstances. Mayne V. Chicago, etc., R. Co., 12 Okl. 10, 69 P 933.

[b] Remote cause.-The failure of the employees in charge of a train to assist children to board it at a station, necessitating their mother to assist them, if negligence, is too remote to be the cause of the mother's injury, sustained while afterward attempting to alight from the train while in motion. Flaherty v. Boston, etc., R. Co., 186 Mass. 567, 72 NE 66.

[c] Running past a street crossing is not the proximate cause of injury to a street car passenger hurt in an attempt to alight. Lynch v. St. Louis Transit Co., 102 Mo. A. 630, 77 SW 100.

[d] Inability of passenger to understand warning.-Where some peculiarity of an injured party, unknown to defendant carrier, whereby he could not understand what would be a sufficient warning to an ordinary person, is the proximate cause of his injury, the accident is to be referred to such party's misfortune, and not to the negligence of defendant because of failure to give an effectual warning. Bilotta v. Media, etc., Electric R. Co., 220 Pa. 542, 70 A 123.

[e] An assault by a conductor on a passenger in the course of an altercation with him in reference to an alleged defective pass cannot be considered as the ordinary and reasonable, or even remotely probable, effect of the carrier's negligence in writing a wrong date on the pass. St. Louis, etc., R. Co. v. Harrison, 76 Ark. 430, 89 SW 53.

[f] A trainman's act in lending a pistol to a passenger is not the proximate cause of the injury to a second passenger shot by a third who attempts to shoot the passenger who borrowed the pistol while the latter is trying to shoot him; and hence the carrier is not liable for such injury. Penny v. Atlantic Coast Line R. Co., 153 N. C. 296, 69 SE 238, 32 LRANS 1209.

[g] Failing to direct passenger to right car.-Where a passenger is injured by falling on a platform as he is stepping off from a train which he has boarded thinking that it is the train he wants, defendant's negligence in failing to direct plaintiff to the right car is not too remote to justify a recovery, since the fact that the danger attendant on alighting from the train is increased by the further negligent act of defendant in reference to the condition of the platform does not relieve defendant from liability for the first act of negligence on the ground of remoteness. Newcomb v. New York Cent., etc., R. Co., 182 Mo. 687, 81 SW 1069.

3. Union Pac. R. Co. v. Evans, 52 Nebr. 50, 71 NW 1062.

[a] Defect in approach to platform.-In determining whether the structural defect of the approach to a passenger platform, or the dampness of the platform at the time, was the proximate cause of the slipping of plaintiff's foot and his consequent injury, the inquiry should be, Is the original defect an efficient and dominant cause, which put the other

cause in operation?

Union Pac. R. Co. v. Evans, 52 Nebr. 50, 71 NW 1062.

4. Ind.-Pittsburgh, etc., R. Co. v. Schepman, 171 Ind. 71, 84 NE 988 [rev (A.) 82 NE 9981.

Ky.-Cumberland R. Co. v. Hemphill. 169 Ky. 519, 184 SW 883. Mass.-Blanchette v. Holyoke St. R. Co., 175 Mass. 51, 55 NE 481. Mich.-Foley v. Detroit, etc., Co.. 179 Mich. 586, 146 NW 186. Mo.-Ray v. Chicago, etc., R. Co., 147 Mo. A. 332, 126 SW 543.

R.

Tex. Barnes v. Hewitt, (Civ. A.) 152 SW 236; Ft. Worth, etc.. R. Co. V. Work, (Civ. A.) 100 SW 962; Latimer v. St. Louis Southwestern R. Co., 40 Tex. Civ. A. 614, 90 SW 665. See also cases supra note 2.

[a] Illustrations.-(1) A passenger injured, not because the train was made up in violation of Burns Annot. St. (1901) § 5191, forbidding in the formation of a passenger train the placing of a baggage car in the rear of a passenger car, but because the baggage car attached to the rear of the passenger car had an open and exposed platform, cannot recover for the negligent and unlawful placing of the baggage car in the rear of the passenger car contrary to § 5191, since that was not the proximate cause of his injury. Pittsburgh, etc., R. Co. v. Schepman, 171 Ind. 71, 84 NE 988 [rev (A.) 82 NE 998]. (2) The act of a trainman in misinforming a passenger as to name of the station is not the cause, proximate or remote, of injuries caused by the train starting as he was boarding it after having discovered the mistake. Foley v. Detroit, etc., R. Co., 179 Mich. 586, 146 NW 186. (3) Where a freight train passenger attempts to board it while moving and actually grabs the handrods and gets his feet on the caboose steps and is then thrown off by a jerk of the train, any antecedent negligent acts of the operatives inducing him to attempt to get on could not be the legal cause of the injury. Ray v. Chicago, etc., R. Co.. 147 Mo. A. 332, 126 SW 543. (4) Where a passenger in attempting to board a train slipped and fell by reason alone of the icy condition of the car steps, the fact that the railroad company may also have been negligent in not providing a portable step is not a ground of recovery. Ft. Worth, etc., R. Co. v. Work, (Tex. Civ. A.) 100 SW 962. (5) Where a passenger was injured by an alleged sudden and premature start of the train while she was attempting to alight at a station, the carrier's alleged negligence in failing to provide vestibuled cars to prevent passengers from being thrown off or from jumping off the train while in motion was not the proximate cause of the injury. Latimer v. St. Louis, etc., R. Co., 40 Tex. Civ. 614, 90 SW 665.

[b] "If a carrier is negligent in two particulars, and neither negligent act alone is sufficient to cause an injury, but both, acting concurrently, are the proximate cause of a wreck and subsequent injury, the carrier is liable.' Sproule v. St. Louis, etc., R. Co., (Tex. Civ. A.) 91 SW 657, 658.

Matters to be proved generally see infra § 1419.

5. Ala. Birmingham R., etc., Co. V. Butler, 135 Ala. 388, 33 S .33; Alabama Great Southern R. Co. v. Arnold, 80 Ala. 600, 2 S 337.

Ark.-St. Louis, etc., R. Co. V. Jackson, 118 Ark. 391, 177 SW 33, LRA1915E 668; Kansas City Southern R. Co. v. Worthington, 101 Ark. 128, 141 SW 1173.

Cal-Champagne V. Hamburger, 169 Cal. 683, 147 P 954; Johnson v. Oakland, etc., R. Co., 127 Cal. 608, 60 P 170.

etc.,

D. C.-Great Falls, etc., R. Co. v. Hammerly, 40 App. 196.

Ga.-Southern R. Co. v. Webb, 116 Ga. 152, 42 SE 395, 59 LRA 109.

Ill. Kordick v. Chicago R. Co.,

187 Ill. A. 74.

Ind.-Cincinnati, etc.. R. Co. V. Cooper, 120 Ind. 469, 22 NE 340, 16 AmSR 334, 6 LRA 241; Terre Haute, etc., Tract. Co. v. Hunter, (A.) 111 NE 344; Chicago, etc., R. Co. V. Mitchell, 56 Ind. A. 354. 105 NE 396; Louisville, etc., Tract. Co. v. Worrell, 44 Ind. A. 480, 86 NE 78; Richmond St., etc., R. Co. v. Beverley, 43 Ind. A. 105, 84 NE 558, 85 NE 721. Ky.-Davis V. Paducah R., etc., Co., 113 Ky. 267, 68 SW 140, 24 KyL 135.

La.-Landphere V. Illinois Cent. R. Co., 132 La. 351, 61 S 399.

Md. Western Maryland R. Co. v. State, 95 Md. 637, 53 A 969.

Mass.-Weil v. Boston El. R. Co., 218 Mass. 397, 105 NE 983; Steverman v. Boston El. R. Co., 205 Mass. 508, 91 NE 919; Lockwood v. Boston El. R. Co., 200 Mass. 537, 86 NE 934, 22 LRANS 488; Toohy v. McLean, 199 Mass. 466, 85 NE 578.

Minn. Kral V. Burlington, etc., R. Co., 71 Minn. 422, 74 NW 166.

Miss.-Yazoo, etc., Valley R. Co. v. Roberts, 88 Miss. 80, 40 S 481.

Mo.-McDonald V. Metropolitan St. R. Co., 219 Mo. 468, 118 SW 78, 16 AnnCas 810; Buck v. People's St. R., etc., Co., 108 Mo. 179, 18 SW 1090; Adams V. Missouri Pac. R. Co., 100 Mo. 555, 12 SW 637, 13 SW 509; Weber v. Kansas City Cable R. Co., 100 Mo. 194, 12 SW 804. 13 SW 587, 18 AmSR 541, 7 LRA 819; Williams V. Chicago, etc., R Co., 169 Mo. A. 468, 155 NYS 64; Hooper v. Metropolitan St. R. Co., 125 Mo. A. 329, 102 SW 58; Green v. Missouri, etc., R. Co., 121 Mo. A. 720, 97 SW 646; Laub v. Chicago, etc., R. Co., 118 Mo. A. 488, 94 SW 550; Becker v. Lincoln Real Est., etc., Co., 118 Mo. A. 74, 93 SW 291; Willis v. St. Joseph, R., etc., Co., 111 Mo. A. 580, 86 SW 567; Estes v. Missouri Pac. R. Co., 110 Mo. A. 725, 85 SW 627; Parker v. St. Louis Transit Co., 108 Mo. A. 465, 83 SW 1016; Scamell v. St. Louis Transit Co., 102 Mo. A. 198, 76 SW 660.

N. H.-Boothby v. Grand Trunk R. Co., 66 N. H. 342, 34 A 157.

N. J.-Newark, etc., R. Co. v. McCann, 58 N. J. L. 642, 34 A 1052, 33 LRA 127.

N. Y. -Smith V. British, etc., Royal Mail Steam Packet Co., 86 N. Y. 408; Macer v. Third Ave. R. Co., 47 N. Y. Super. 461.

Oh.-Cleveland, etc., Tract. Co. v. Ward, 27 Oh. Cir. Ct. 761.

S. C.-Martin v. Southern R. Co., 77 S. C. 370, 58 SE 3, 122 AmSR 574. Tex.-Galveston, etc., R. Co. V.

Bell, (Civ. A.) 165 SW 1; St. Louis Southwestern R. Co. v. Gresham, (Civ. A.) 140 SW 483; Citizens' R. Co. v. Farley, (Civ. A.) 136 SW 94; St. Louis Southwestern R. Co. V. Bryant, 46 Tex. Civ. A. 601, 103 SW 237; Gulf, etc., R. Co. v. Redeker, (Civ. A.) 100 SW 362; St. Louis Southwestern R. Co. v. Duck, (Civ. A.) 72 SW 445. Wash.-Rice V. Puget Sound Tract., etc., Co., 80 Wash. 47, 141 P 191; Atkeson v. Jackson, 72 Wash. 233. 130 P 102.

Wis. Davis V. Chicago, etc., R. Co., 93 Wis. 470, 67 NW 16, 1132, 57 AmSR 935, 33 LRA 654.

Ont.-Morrison v. Pere Marquette R. Co., 27 Ont. L. 271, 551, 15 Can. R. 402 [aff 28 Ont. L. 319, 12 Dom LR 344, 15 CanRCas 406, 4 OntWN 889].