Kentucky Central Railroad Company v. Thomas' Administrators. Contributory negligence is a defense which confesses and avoids the plaintiff's case, and must be made out by showing affirmatively, not only that the plaintiff was guilty of negligence, but that such negligence co-operated with the negligence of the defendant to produce the injury. If a whole train be precipitated down an embankment, or through a bridge into deep water, and a passenger seated in the express car is drowned, his representative will have the same right to recover as the representative of a passenger who was seated in a passenger coach. There could be no pretense for saying, that because the passenger in the express car was more exposed to danger in case of a collision with a train running in the opposite direction than he would have been if he had been in a passenger coach, he ought not to recover, when it is clear that as respects the misfortune which actually occurred, his danger was not at all increased by the fact that he was in the express car. So also of a large class of railroad disasters which result from the giving way of the track, or the breaking of some portion of a car. These are as liable to occur at one portion of a train as at another, and consequently, a passenger is in no more danger of injury from such accidents in the express car than in a passenger car, O'Donnell v. Railroad Co., 59 Penn. 250; and the fact that he was in that car when the accident occurred would not defeat his right to recover, unless perhaps the injury should result from some agency in that car which would not have existed in a passenger car. But there is another class of disasters in which the danger may be greater in the express car than in the passenger car. Express cars are usually in advance of passenger cars, and in case of collision with stock or other objects on the track, or with trains running in an opposite direction, the danger may be greater in the express car. The question of contributory negligence may be further affected by other facts. The conductor is, as to the train under his charge, the general agent of the company; and if a passenger be invited by him to occupy a position more dangerous than a seat in a passenger car, and the passenger is injured while in that position, the company could not defeat an action for the injury by a plea of contributory negligence. In such a case the act of the conductor would be the act of the company. Burns v. Railroad Co., 50 Mo. 139; Clark V. Railroad Co., 36 N. Y. 135. Kentucky Central Railroad Company v. Thomas' Administrators. If a conductor require a passenger to occupy a dangerous position, the company would be liable in the same manner as if it had itself given the order. Ordinarily, it is the duty of a conductor to warn a passenger known to be occupying a dangerous position on the train, and to request him to take a seat in the passenger car, and his failure to do so may sometimes be equivalent to the consent of the company that the passenger may occupy that position. 50 Mo. 139; 36 N. Y. 135. But he is not bound, at the peril of the company, to know that a passenger is in an exposed position, and unless he does know it, the passenger has no right to complain that he was not warned. It is the duty of passengers to occupy the cars provided for them, and the conductor has a right to presume that they are doing so until he knows the contrary; and if a passenger goes into the baggage, mail or express car without the knowledge or consent of the conductor, he will not be permitted to urge, as an excuse for remaining there, that the conductor should have discovered him and ordered him back to his seat, but failed to do so. No one can be permitted to justify or excuse his own improper conduct by alleging that it was the duty of another to prevent such conduct on his part. It seems to us therefore that when contributory negligence is interposed as a defense to an action against a railroad company for negligently injuring a passenger, and the supposed negligence consists in the fact that the passenger voluntarily occupied a position in the train which was more dangerous than the position he should have occupied, the nature of the accident causing the injury is to be considered; and if upon such consideration it appears that the danger of injury from that particular accident was materially increased by the fact that the passenger was in that particular place instead of the place he should have occupied, he ought not to recover, unless he was there with the consent of the conductor. But if the nature of the accident be such that the danger of injury was not enhanced in consequence of the position occupied by the passenger, or if the accident was of such a nature as was as likely to occur in one portion of the train as another, or if he occupied the place with the knowledge or consent of the conductor, his right of recovery will not be affected by the fact that he was at an improper place. Applying these tests to the case before us, we are satisfied the Kentucky Central Railroad Company v. Thomas' Administrators. court erred in telling the jury that no fault on the part of the intestate which did not contribute to the wrecking of the train would authorize them to find for the defendant, and in refusing instruction "A" asked by counsel for the appellant. Counsel for the appellee cite several authorities on this point, but none of them seem to us to bear directly upon the question. The case which comes nearest to this is O'Donnell v. Railroad Co., 59 Penn. St. 239. In that case it appeared that O'Donnell had been employed by the defendant to work on one of its bridges, and as part of his wages the defendant agreed to carry him to and from his home each day on its passenger train. After he had been thus engaged for near two months, during which time he generally rode in the baggage car, he was injured while riding in that car, in consequence of the giving way of the track. The trial court charged the jury that if the plaintiff rode in the baggage car by invitation or direction of the conductor, the fact of his being in that car would not affect his right to recover; but such invitation or direction should not be inferred from the mere fact that he had been accustomed to ride frequently in the baggage car with the knowledge and without objection on the part of the conductor. And further, that it was the duty of passengers to occupy the place provided for them; the baggage cars are assigned for baggage and not for passengers, and any one possessed of intelligence sufficient to travel should be held to know that the baggage car is not an appropriate place for passengers, and if a passenger chooses to leave his seat in the passenger cars, and go into the baggage cars, he is guilty of negligence, and if it is shown to the satisfaction of the jury that such negligence contributed in a material degree to his injury, he could not recover. Commenting on this instruction, AGNEW, J., said: "In view of the evidence, this instruction was erroneous. The plaintiff had been riding in the baggage car twice a day for about two months. Murphy, the conductor, himself admitted that Liston's men (of whom O'Donnell was one) rode frequently in the baggage car without his objecting; that he never ordered them out. When they got on that car they generally remained without objection; that he had no recollection of requesting them to go into the passenger car, and that he had not at any time requested the plaintiff to leave the baggage car. * * Under these circumstances it cannot be justly said of them, as of ordimary passengers, that any one who is possessed of sufficient intelligence to * * Kentucky Central Railroad Company v. Thomas' Administrators. travel should be held to know that the baggage car is not an appropriate place for passengers,' nor to say, although the consent of the conductor to ride there may be inferred from these facts, yet it does not follow that the company is liable, unless it is shown that that they were there at the invitation or by the direction of the conductor. * From the evidence in this case, the jury might reasonably conclude that O'Donnell was in the baggage car with the permission of the conductor, and for the benefit of the company, and was rightfully there at the time of the accident." It is evident from this language that the court did not mean to decide that being in the baggage car would not, under any circumstances, be such contributory negligence as would defeat an action by a passenger to recover for an injury sustained while riding in that car. On the contrary, it seems to us clear that the court entertained an exactly opposite opinion. After saying that the instruction was erroneous, in view of the evidence, the learned judge proceeds to state evidence from which the jury might have inferred that O'Donnell was riding in the baggage car not only with the knowledge and consent, but by the desire of the conductor. The suggestion that the evidence showed that the plaintiff had been riding in the baggage car twice a day for two months, with the knowledge of the conductor, and without objection on his part, shows that the court only meant to decide that the evidence would have warranted the jury in finding that he rode there with the consent of the conductor, and that if he did so, he was not guilty of contributory negligence, and this implies that if he rode there without such consent he was guilty. In Dunn v. Grand Trunk R. Co., 58 Me. 187; s. c., 4 Am. Rep. 267, and 10 Am. Law Reg. (N. S.) 615, the only negligence alleged was, that the plaintiff took passage on a saloon car attached to a freight train, contrary to a regulation of the company forbidding the carrying of passengers on such trains. The conductor knew the plaintiff was in the car before the train started but failed to direct him to get off; and after train started received fare for a first-class passage. The company was held liable on the ground that it was the duty of the conductor to enforce the regulation, and having failed to do so, the company was bound by his acts and omissions, and became as to the plaintiff a carrier of passengers, and bound to the same extent as if the plaintiff had been injured on one of its passenger trains. Field v. Chipley. In Edgerton v. N. Y. & H. R. R. Co., 39 N. Y. 227, the only negligence imputed to the plaintiff was, that he took passage on the caboose attached to a freight train. The case showed that the company was in the habit of carrying passengers in that way, and as in Dunn's case, supra, the court held that it incurred the same liability as if he had been a passenger on a passenger train. In Carroll v. Railroad Co., 1 Duer, 579, it appeared the plaintiff rode in the baggage car with the consent of the conductor. L., C. & L. R. R. v. Mahoney, 7 Bush, 239, was an action under the third section of the statute for "willful" negligence, and has no application here. [Omitting a minor point.] Reversed and remanded. FIELD V. CHIPLEY. (79 Ky. 260.) Contract-to assign fees of office-public policy. A contract by a clerk of a court to assign all the fees of his office to pay a debt is void as against public policy (See note, p. 220.) DILL for injunction. The opinion states the case. fendant had judgment below. Bijur & Davie, for appellant. Goodloe, Roberts & Humphrey, for appellee. The de PRYOR, J. S. F. Chipley, the clerk of the Louisville Chancery Court, being indebted to Neill B. Field in the sum of about $28,000, evidenced by several promissory notes, for the purpose of securing its payment entered into an agreement with Field, by which Chipley transferred and delivered to John G. Walker "all the demands and claims due to him, the said Chipley, as fees of his said office, which have accrued between the 1st of August, 1877, and the 27th of February, 1878, and further agreed to assign to the said Walker for a like purpose all claims due to him, the said Chipley, as fees of his said office which shall accrue to him hereafter, or from the |