Notes

project from the floor or other parts of the vehicle in such a manner that they may catch in the clothing of, and cause injury to, passengers. Bowdle v. Detroit, etc., R. Co., 103 Mich. 272, 61 N. W. 529, 2 Am. & Eng. R. Cas., N. S., 223, 50 Am. St. Rep. 366; Tunnicliffe v. Bay Cities, etc., R. Co., 102 Mich. 624, 61 N. W. 11, 32 L. R. A. 142. A woman who was a passenger on defendant's suburban train, in attempting to alight, was injured by being thrown to the ground in consequence of the skirt of her dress becoming caught on the head of a coupling pin which projected from the platform of the car. It was held that the facts that similar platforms were recognized by railroad men as suitable and safe, and were in general use by railroad companies, did not conclusively establish the absence of negligence on the part of the defendant, but that the projecting pin being plainly visible so that the company had notice of the possible danger to passengers, the question of defendant's negligence was properly left to the jury, and a judgment for plaintiff was affirmed. Illinois, etc., R. Co. v. O'Connell, 160 Ill. 636, 43 N. E. 704, 4 Am. & Eng. R. Cas., N. S., 260, affirming 59 Ill. App. 463. Plaintiff was injured, while alighting from defendant's street car, by being thrown to the ground in consequence of her dress becoming caught in a curtain hook. The hook was of the kind known as a snap hook, consisting of a hook with a spring, forming a ring or loop when the spring was in place. But the spring of the particular hook which caused the accident was broken. The only proof of negligence given by the plaintiff was that the spring of the hook was broken, and that the point of the hook was thus exposed. There was no proof showing how or when the spring was broken, nor how long it had been broken; nor was there any proof that, by any degree of diligence or care incumbent upon the defendant, it could have known of its defective condition. The hooks broke in no other way than by use, and, for aught that appeared, the particular hook might have been broken by some person after the car started upon the trip. The defendant gave evidence showing that all its cars were furnished with the same kind of curtains and hooks, and that there was no better way known of fastening the curtains; that its road had been operated for several years, and carried more than a million of passengers every year, and that such an accident had never before occurred; that the springs in the hooks would sometimes break by use; that at the end of every trip the cars were inspected by persons assigned to that duty, and the curtains examined, and, if a broken hook was discovered, it was taken off, and replaced by a perfect one. In reversing a judgment for plaintiff, the reviewing court by Earl, J. (1 (Danforth, J., dissenting), said: "It is difficult to perceive what more the defendant could have done or was bound to do. A defective, broken hook was not of such a dangerous character as to require the very highest degree of diligence to discover and remove it. It was not more dangerous in this car than it would have been elsewhere, where people were passing. No prudent man would have anticipated such an accident as this, or apprehended such an injury from a broken hook. Upon all the evidence, therefore, we are of opinion that the trial judge should have held, as matter of law, that the plaintiff had failed to establish a case entitling her to a recovery." Kelly v. New York, etc., R. Co., 109 N. Y. 44, 14 N. Y. S. R. 36, 15 N. E. 879, reversing 39 Hun (N. Y.) 486.

J. Projection of Wheel Guard from Floor of Street Car.

It cannot be said that a street car is negligently constructed because a sheathing, covering the wheels and which is open to the view of passengers, projects a few inches above the floor of the car, that being the usual construction and no better being known. Farley v. Philadelphia Traction Co., 132 Pa. St. 58, 18 Atl. 1090, affirming 6 Pa. Co. Ct. R. 347. And it has been held that the existence of a space of several inches between the sheet iron covering of the wheels of a street car, which project through the floor of the car under the seats to a height of two or three inches, and the side of the car where

Notes

the seats extend down to its edge, does not amount to defective construction. Thompson v. Metropolitan, etc., R. Co., 135 Mo. 217, 36 S. W. 625.

K. Construction of Steps of Street Cars.

The steps by which passengers get on and off street cars should, of course, be suitable for the purpose. But in an action to recover for injuries received by plaintiff while boarding defendant's open summer car, it appeared that there was a step extending the whole length of the car. The step was seven and three-fourths inches wide, and thirteen inches below the floor of the car. The space between the back of the step and the edge of the floor was not entirely closed; but at the bottom, and resting on the step, was a board four inches high, above it an open space of three and three-fourths inches, and above this a board five and one-fourth inches wide, which reached to the floor. The injury to plaintiff was received, while passing from the step to the floor of the car, by getting his foot caught in the open space at the back of the step. It was held that there was nothing to show that the car was negligently constructed, and plaintiff was nonsuited. Keller v. Hestonville, etc., R. Co., 149 Pa. St. 65, 24 Atl. 159, 30 Wkly. Notes Cas. 416. For very similar cases, Werbowlski v. Ft. Wayne, etc., R. Co., 86 Mich. 236, 48 N. W. 1097, 24 Am. St. Rep. 120, and Frobisher v. Fifth Avenue Transp. Co., 151 N. Y. 431, 45 N. E. 839, reversing 81 Hun (N. Y.) 544, 30 N. Y. Supp. 1099. For a statement of the facts of the last-cited case see post, this note, III.

L. Wheel Guards.

see

It has been held that, although it is provided by statutes that railway companies operating street cars shall have guards upon their cars to protect persons from getting under the wheels, it is a question for the jury whether the absence of guards constitutes negligence. Finkeldey v. Omnibus Cable Co., 114 Čal. 28, 45 Pac. 996, 5 Am. & Eng. R. Cas., N. S., 393.

M. Motive Power of Street and Cable Cars.

Care must be exercised by a street railway company employing horses as the motive power to select safe and tractable horses considering the use to which they are to be put. Noble v. St. Joseph, etc., R. Co., 98 Mich. 249, 57 N. W. 126; Wormsdorf v. Detroit, etc., R. Co., 75 Mich. 472, 42 N. W. 1000, 40 Am. & Eng. R. Cas. 271, 13 Am. St. Rep. 453. Street railways employing electricity as the motive power must exercise care to have the cars properly insulated and to discover any escape of electricity which may cause injury to passengers. Denver Tramway Co. v. Reid, 4 Colo. App. 53, 35 Pac. 269; Burt v. Douglas County, etc., R. Co., 83 Wis. 229, 53 N. W. 447, 58 Am. & Eng. R. Cas. 158, 18 L. R. A. 479. A car run by cable as the motive power should be equipped with a sufficient grip. Sharp v. Kansas City, etc., R. Co., 114 Mo. 94, 20 S. W. 93, 52 Am. & Eng. R. Cas. 561.

N. Formation of Train.

It is provided by statute in a number of states that, in forming trains, baggage, freight and similar cars shall be placed in front of the passenger coaches. Mansf. Dig. Ark., sec. 5477, in connection with which, see Arkansas, etc., R. Co. v. Canman, 52 Ark. 517, 13 S. W. 280; Ind. Rev. Stat. 1894, sec. 5191; 1 How. Ann. Stat. Mich., sec. 3373; Mo. Rev. Stat. 1889, sec. 2607; Mont. Penal Code 1895, sec. 691; Nev. Gen. Stat. 1885, sec. 881; N. J. Rev. Stat., p. 933, sec. 116; N. Car. Code 1883, sec. 1971; R. I. Pub. Stat. 1882, p. 406, c. 158, sec. 10; 1 S. Car. Rev. Stat. 1893, sec. 1680; Sayles' Civil Stat. Tex., art. 4233; 2 Utah Comp. Laws 1888, p. 32, sec. 2352. And, irrespective of statute, a railroad company may no doubt lay itself open to a charge of negligence in making up a train in an improper and unsafe order. It has been held that attaching the locomotive at the rear of a train, and operating the train in that manner, justifies a finding of negligence by the jury. Chicago, etc., 3 RR R-11

Notes

R. Co. v. Grimm, 25 Ind. App. 494, 57 N. E. 640. See Louisville, etc., R. Co. v. Weaver, 22 Ky. L. Rep. 30, 50 L. R. A. 381. And in an action to recover for injuries sustained by plaintiff in consequence of the derailment of the train on which he was a passenger, it was held that the facts that the engine was run backward with the tender in front, so that the headlight could not throw any light on the track, and that a milk car forming part of the train was placed last, should be considered by the jury along with the other evidence in the cause in deciding whether or not defendant had been guilty of negligence. Philadelphia, etc., R. Co. v. Anderson, 94 Pa. St. 351, 6 Am. & Eng. R. Cas. 407, 39 Am. Rep. 787. But it has been held that it is not necessarily negligent to make up a train, which is about to pass through a storm along the line, with a snow-plow ahead and a flanger between the leading locomotive and those attached to the cars for traction purposes. Denver, etc., R. Co. v. Pilgrim, 9 Colo. App. 86, 47 Pac. 657, 8 Am. & Eng. R. Cas., N. S., 249.

O. Attaching Improperly Loaded Car, or Car of Wrong Gauge, to Train. Several flat cars loaded with logs were attached to a train in front of the passenger car in which plaintiff was riding. There was evidence to the effect that the flat cars were improperly loaded and that the derailment, which resulted in injury to plaintiff, was caused by a log rolling off one of the cars and changing the position of a switch over which the train was passing. A judgment for plaintiff was sustained. Keating v. Detroit, etc., R. Co., 104 Mich. 418, 62 N. W. 575.

A railroad company has been held liable to a passenger for injuries sustained in consequence of the derailment of a train caused by attempting to run in the train cars with a gauge wider than the gauge of the track. East Line, etc., R. Co. v. Smith, 65 Tex. 167. P. Precautions against Fires and Explosions.

The legislatures of some of the states have imposed certain duties upon railroad companies intended to protect their passengers against the injuries by fire. Thus, the kind of heaters to be used in railroad coaches has sometimes been regulated by statute. 3 How. Ann. Stat. Mich., sec. 3434b; N. H. Pub. Stat. 1891, p. 453, sec. 13. In at least one state it has been provided that the heat shall be generated outside of the cars (N. Y. Laws 1887, c. 616), and the requirement has been held to be within the police power of the state. People v. New York, etc., R. Co., 5 N. Y. Supp. 945, affirming 55 Hun (N. Y.) 409, 608, 8 N. Y. Supp. 672, affirmed, without opinion, in 123 N. Y. 635, 25 N. E. 953, affirmed in 165 U. S. 628, 41 L. Ed. 853, 8 Am. & Eng. R. Cas., N. S., 172. In quite a number of states the use of illuminating oil which will ignite at a temperature of less than three hundred degrees Farenheit is prohibited. Ky. Stat. 1894, sec. 737; N. Y. Laws 1882, c. 292; Ohio Rev. Stat. 1890, sec. 3353; R. I. Pub. Stat., p. 407, ch. 158, sec. 16: 1 S. Car. Rev. Stat. 1893, sec. 1683; Saub. & B. Ann. Stat. Wis., sec. 1806. And to aid passengers to make their escape from wrecked cars, railroads must, in some states, supply their passenger cars with certain prescribed tools such as saws, axes, etc. 1 How. Ann. Stat. Mich., sec. 3433; Minn. Laws 1887, c. 18, sec. 2; N. Y. Laws 1884, c. 439, sec. 8; Saub. & B. Ann. Stat. Wis., sec. 1807. In some states the locking of the doors of passenger coaches while the train is in motion is prohibited. Fla. Rev. Stat., sec. 2266; Ind. Rev. Stat., sec. 2298; W. Va. Code 1891, p. 898, sec. 18; Saub. & B. Ann. Stat. Wis., sec. 1806.

In the statutes of the United States and of at least one of the states, provisions are found which inhibit the transportation of certain kinds of explosives on passenger trains. U. S. Rev. Stat., sec. 4278, 4279, 5353, 5355; Saub. & B. Ann. Stat. Wis., sec. 1805. Section 5353 of the United States prohibiting the transportation of nitroglycerine on a railway train employed in conveying passengers from one state to another has been held to apply to the transportation of dynamite on a freight or mixed train carrying passengers. United States v. Saul, 58 Fed. 763.

Q. Mixed Trains.

Notes

The line of a railroad may be so short, and the business done by it so small, as to make it unreasonable to require it to run separate trains for freight and passengers. If the business done does not warrant it, it would be unreasonable and oppressive to demand it, and it would not be required. But, on the other hand, if the business is sufficiently large and profitable to warrant it, and the safety of the passengers is endangered or diminished by having the passenger coaches mixed in the same train with freight cars, it is clearly the duty of the railway company to run separate trains. Arkansas Midland R. Co. v. Canman, 52 Ark. 517, 13 S. W. 280.

R. Vestibule Trains.

There is no rule of law which requires a railroad passenger carrier to use vestibule cars. But where a company has undertaken to provide a vestibule train, if it negligently permits the appliances to be out of order, or carelessly leaves the doors open so that passengers who rely and have a right to rely upon the safety of and proper management of the train are injured thereby, the company is liable. Thus it has been held to be negligent to leave open an outside vestibule door through which a passenger fell at night. Bronson v. Oakes, 22 C. C. Ă. 520, 76 Fed. 734, wherein the testimony showed that the train was moving rapidly, that the vestibule was poorly lighted and that the passenger mistook the open door for the car door, through which he intended to pass on his way through the train. But it has been held that the placing of a car without vestibules in a vestibule train in the daytime is not negligence. Sansom v. Southern Ry. Co., 111 Fed. 887.

S. Palace or Sleeping Cars Forming Part of Train.

The requirement of the law which imposes upon carriers the duty to exercise care in providing safe and suitable vehicles for the conveyance of passengers would lose much, if not all, of its practical value, if carriers were permitted to escape responsibility upon the ground that the cars or vehicles, used by them and from whose insufficiency injury results to passengers, belong to others. Accordingly if cars, although owned and, as to the interior arrangements, controlled by a palace or sleeping car company, constitute a part of a train, the railroad is responsible for their sufficiency and safety to the same extent that it is responsible for the safety and sufficiency of its own vehicles. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, 1 Am. & Eng. R. Cas. 225. See Jenkins v. Louisville, etc., R. Co. (Ky. 1898), 47 S. W. 761. Applying this rule, railroad companies must be held responsible for accidents caused by the falling of berths which are defectively constructed or negligently allowed to become out of repair. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, 1 Am. & Eng. R. Cas. 225; Cleveland, etc., R. Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433, 8 Am. & Eng. R. Cas. 371. See this note, ante, II, D., and post, IV.

III. STAGE AND HACKNEY COACHES.

A carrier by stage or hackney coach is bound to exercise care to provide a roadworthy coach, good harness, gentle and tractable horses, and a skillful and careful driver. McKinney v. Neil, 1 McLean (U. S.) 540, Fed. Cas. No. 8,865; Anderson v. Scholey, 114 Ind. 553, 17 N. E. 125; Sales v. Western Stage Co., 4 Iowa 547; Frink 7. Coe, 4 Greene (Iowa) 555, 61 Am. Dec. 141; Ingalls v. Bills, 9 Metcalf 1, 43 Am. Dec. 346; Caveny v. Neely, 43 S. Car. 70, 20 S. E. 806; Farish v. Reigle, 11 Gratt. (Va.) 697, 62 Am. Dec. 666. And it may, in some case, be the duty of a carrier by stage coach to equip the coach, when traveling by night, with lights. Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632, 54 Am. Rep. 544; Anderson v. Scholey, 114 Ind. 553, 17 N. E. 125. In an action by a passenger against an omnibus company the negligence which plaintiff imputed to defendant was the alleged defective construction of the step of the vehicle.

Notes

It appeared that there was but one step, twenty-two inches long and about sixteen inches wide. It was held in position by two large braces, one on each end, and there was corded rubber covering the step. The back of the step was open and not closed. The charge of negligence was based upon this opening. One of the witnesses testified that the open step was used for large cities, and another that he had never seen a stage with a solid back to its step, except the hotel coaches. The trial court refused to charge that there was no evidence that the step of the stage, or the stage itself, was in any way defective. In holding that this was error, the reviewing court said: "It is quite apparent, from the testimony given, that both. kinds of steps are in general use, and that each may have its advantage and disadvantage. With the solid back step there would be no danger of the foot slipping through and catching under the bus, but it would be more liable to fill with mud and snow in traveling over the streets, and thus cause the foot to slip forward. It did not appear that any accident of this character had before occurred by reason of the use of the open back step. We think, therefore, that the defendant was not chargeable with negligence by reason of its use of the open step, and that its use did not render the omnibus defective." Frobisher v. Fifth Avenue Transp. Co., 151 N. Y. 431, 45 N. E. 839, reversing 81 Hun (N. Y.) 544, 30 N. Y. Supp. 1099. For very similar cases, see ante, this note, II, K.

IV. CARRIERS BY WATER.

Carriers by water craft are bound to exercise care to provide good, stanch, and sufficient vessels, equipped with proper and sufficient appliances.

Thus, a carrier by ferry boat should provide a safe way by which passengers may enter and leave the boat. Le Barron v. East Boston Ferry Co., 93 Mass. 312, 87 Am. Dec. 717. The gates used at the ends of a ferry boat to close the ways by which to enter and leave the boat should be maintained in good order. Peverly v. City of Boston, 136 Mass. 366, 49 Am. Rep. 37. But in a case where a passenger on a steam boat stumbled over a gang plank of ordinary construction, which was lying on the deck of the vessel in close proximity to the place where it had to be used, there was no proof that the plank was negligently or unusually, constructed or handled, nor any other proof of any specific negligence of the defendant, which produced the plaintiff's fall. Judgment for plaintiff was reversed on appeal, the reviewing court regarding the case as a mere accident not induced by negligence. Seddon v. Bickley, 153 Pa. St. 271, 25 Atl. 1104. In a suit to recover for the death of a passenger by falling overboard it appeared that the boat upon which the deceased took passage had a gangway in the forward part about eight feet in width, with a stanchion in the center, which was covered with rails, about three feet high, which were attached by hinges to the bulwarks of the same height, inclosing the residue of the forward part of the boat. The deceased, about dusk, while the boat was running upon her trip, and the deck somewhat icy, and the wind blowing hard, came through a door from the room immediately in rear of this forward part. His hat was blown off and he sprang to recover it, and while so doing fell down and slipped, under the railing upon the gangway, overboard and was drowned. The only proof of negligence was the omission to inclose the space between the railing and deck so as to preclude the possibility of slipping under it. In sustaining a judgment nonsuiting plaintiff, the reviewing court said: "Had there been any proof tending to show that any such danger would be apprehended by a reasonable, prudent person, the evidence should have been submitted to the jury; but the evidence showed that all the passenger boats upon the lake had been constructed and run in the same way in this respect; that boats had so been run for a great number of years; and there was no proof tending to show that any one had ever before fell and gone overboard under the rail