§ 711. The liability of common carriers for injuries to passengers arising from defects in the cars, coaches or other means used by them is based on the fact of negligence; the same as it is, where injury results from some fault or misconduct in the management of the motive power, in the care of the track, or in the adjustment and use of switches.1

3

In an action against the carrier by a passenger, for a personal injury, the plaintiff holds the affirmative of the issue, and it is incumbent upon him to establish his cause of action, namely, that he was injured by the defendant's negligence. And this he may often do, by proving the fact and the manner of the injury; as that the car in which he was riding, moving at a moderate or usual speed, ran off the track and was broken in pieces, inring him in the wreck; or that moving at ordinary speed the train ran off on to a side track, falling into a ditch and injuring the plaintiff; or that in passing other cars standing on an adjacent track, the plaintiff sitting by the window with her arm on the sill was hit and injured by some board or stick that swept along the side, rubbing and marking the car; or that the plaintiff was injured by a collision of trains running on the same road and under the defendant's management; or that the plaintiff was injured by the explosion of a boiler used in the transportation. There is a reasonable and legal presumption that a train of cars running at reasonable speed may, with the exercise of due diligence, be made to keep the track; that the switches can be properly and securely adjusted; that the roadway can be kept free from obstruction, with sufficient room on either side; that by a proper arrangement

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1 Carpue v. London & Brighton R. Co., 5 Adolph. & Ellis, New Rep., 749; 1 Carr. & Payne, 749; Skinner v. London, Brighton & S. C. R. Co., 5 Exch., 787; Collett v. London & N. W. R. Co., 16 Q. B., 984; 15 Jur., 1053; Curtis v. Rochester & S. R. Co., 20 Barb., 232; S. C., 18 N. Y., 534. An action may be brought on the implied contract. Bremner v. Williams, 1 Carr. & P., 414; Camden & Amboy R. & Tr. Co. v. Burke, 13 Wend., 611; post § 713.

2 Caldwell v. N. J. Steamboat Co., 47 N. Y., 282; see Swarthout v. N. J. Steamboat Co., 48 N. Y., 200. As to the burden of proof negativing contribu tory negligence, see Robinson v. N. Y. Central & H. R. R. Co., 65 Barb., 145.

3 Edgerton v. N. Y. & Harlem R. R. Co., 35 Barb., 193, 389; S. C., 39 N. Y., 227; Fietal v. Middlesex R. Co., 109 Mass., 398.

4 Curtis v. Rochester & S. R. R. Co., 20 Barb., 232; S. C., 18 N. Y., 534; Reed v. N. Y. Central R. Co., 45 N. Y., 574; 56 Barb., 493.

5 Holbrook v. Utica & S. R. Co., 12 N. Y., 236; S. C., 16 Barb., 113; 63 Barb., 260; Chicago & Alton R. Co. v. Pondrom, 51 II., 333.

6 Bridge v. Grand Junction R. Co., 3 Mees. & Welsby, 244; Wylde v. Northern R. R. Co., 53 N. Y., 156, 161; Willis v. Long Island R. Co., 34 N. Y., 670; 46 Penn. St., 151.

7 Ill. Central R. Co. v. Phillips, 49 Ill., 234; further evidence is often given; 18 N. Y., 209; 58 N. Y., 126.

of the time of arrival and departure from each station, and the employment of suitable agents and servants, collisions may be prevented; and that explosie is may be prevented by the exercise of great skill and care in the construction and management of boilers.1

§ 712. Negligence and the requisite evidence to establish the fact according to the plaintiff's allegation, do not properly come within the scope of this work. It is sufficient therefore to touch the subject briefly, and only so far as to preserve its relations.

The mere fact that a passenger has sustained an injury while being carried as such, does not raise a presumption of negligence against the carrier. But it generally happens that the same evidence which proves the injury done, proves also the defendant's negligence; or shows circumstances from which a strong presumption of negligence arises, and which cast on the defendant the burden of disproving it. Proof that the plaintiff was injured by the overturning of a stage coach in which he was riding, is prima facie evidence of the carrier's negligence; and is not overcome by proof that the passenger was riding on the outside, after being requested to take an inside seat.3

Proof that the plaintiff was injured by the breaking down of the coach, while moving with ordinary speed, is prima facie evidence of negligence in its construction or in its due preparation for the road. So proof that the plaintiff was injured by the breaking of the axle of the car in which he was riding, is sufficient prima facie proof of negligence; or proof that cattle were allowed to come upon the track, and that the engine struck a cow killing it, detaching the car in which plaintiff rode and casting it over down the bank; proof of the injury with the cir cumstances attending it, in cases like these, will generally establish the

Idem; the presumption is acted upon in Illinois Central v. Phillips, 49, 234. In Swarthout v. N. J. Steamboat Co., 48 N. Y., 209, the plaintiff went into evidence to show a defective construction of the boiler; 45 Barb., 222; and in Carroll v. Staten Island R. R. Co., 58 N. Y., 126, the carrier is held liable for injury by the explosion, unless it is shown that the accident happened without his fault or that of the manufacturer. See Bulkley v. Naumkeag Steam Cotton Co., 24 How. U. S., 386; The Bark Edwin, 1 Sprague, 477; The Mohawk, 8 Wall., 153.

2 McKinney v. Neil, 1 McLean, 540; Farish v. Reigle, 11 Gratt. (Va.), 697; Fairchild v. California Stage Co., 13 Cal., 599; 25 Cal., 460.

3 Keith v. Pinkham, 43 Maine, 501; 34 N. Y., 670.

4 Curtis v. Drinkwater, 2 Barn. & Ald., 169; Christie v. Griggs, 2 Campb., 79; 13 N. Y., 9; Ware v. Gay, 11 Pick., 106.

Hegeman v. Western R. Cor., 13 N. Y., 9.

6 Bowen v. N. Y. Central R. Co., 18 N. Y., 408; Brown v. N. Y. Central R. Co 34 N. Y., 404.

plaintiff's cause of action, unless the defendant meets the case by showing that the injury occurred without any fault or negligence on his part.

§ 713. A railroad carrier's duty to keep the track in a safe condition for the passage of trains, does not render the company liable for the criminal act of a stranger, in drawing the spikes and loosening a rail of the road, shortly before the passing of a train, where no failure in diligence is attributable to the officers and agents of the road. The carrier cannot guard against an act of this kind, and is not held liable for the resulting injury. For the same reason, a company that guards its track with due diligence, is not liable for an injury resulting from the breaking of a rail by severe frost; or for any act of superior force that cannot be anticipated or guarded against. The natural action of heat, causing an expansion of the rails, will not excuse the company where it appears that the track may be laid and used in such a manner as to avoid danger from that cause.1

§ 714. The carrier's failure to fulfill a duty imposed upon him by statute or by common law, renders him liable when his neglect results in an injury to his passenger. But a statute requiring additional safeguards for the protection of passengers, does not limit or modify his common law liability; while it does increase his liability according to its terms.

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7

A railroad is not required by the common law to fence its roadway to prevent the intrusion of cattle; and yet the presence of cattle on the track increases the danger of the journey along the road, and is often treated as one of the circumstances tending to establish the fact of negligence in the carrier; as calling for diligence on the part of the road to prevent the cattle from coming upon the track, or such a diminution of speed as may prevent a collision, with its consequent injury to passengers. And while the duty of the railroad company to erect fences along the road, and cattle guards at the crossings, imposed by statute,

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1 Deyo v. N. Y. Central R. Co., 34 N. Y., 9; negligence in leaving the track in an unsafe condition will render the carrier liable; Read v. Spaulding, 5 Bosw., 395; 30 N. Y., 564, 630.

2 Keeley v. Erie R. Co., 47 How. Pr., 256, a malicious misplacement of a switch.

3 McPadden v. N. Y. Central R. Co., 44 N. Y., 478.

4 Reed v. N. Y. Central Co., 56 Barb., 493.

Caldwell v. N. J. Steamboat Co., 47 N. Y., 282.

6 Carroll v. Staten Island R. Co., 58 N. Y., 126, 139.

Tonawanda R. v. Munger, 4 N. Y., 349; Railroad v. Skinner, 19 Penn. St.,! 301; Toledo R. R. v. Vickery, 44 Ill., 76; Perkins v. Railroad, 29 Maine, 307. * Brown v. N. Y. Central R. Co., 34 N. Y., 404.

appears to have been designed primarily for the protection of the gen eral public and adjacent owners, there does not appear to be any good reason depriving a person riding as a passenger on the road of the right to insist upon that additional safeguard;1 especially where there is no limitation in the terms of the statute. This interpretation of the statute has been countenanced by eminent judges; and the duty thus imposed is only a specification of one out of many embraced in the broad rule of the common law.3

2

§ 715. By a course of logical development our courts are steadily deducing specific duties from the carrier's general duty to exercise the utmost care and the greatest foresight to insure the safety and convenience of passengers. The specific duties spring out of the general duty, as branches out of the stem of a tree.

Railroad carriers publishing a time table, indicating the time of the starting of trains from the depots and stations along the road, are bound to use all due and reasonable care and effort to keep their engagement thus made with the public; and they must use the same care to notify the public of any change made in the time for the starting of trains. They are also bound to use like reasonable care and effort to complete the trip within the specified time; and are liable in damages, on the ground of negligence, for a failure in this respect.5

Railway carriers are bound to announce the starting of a passenger train, or give notice of it by some suitable signal. They are bound to give passengers the opportunity to get on board and take seats before

12 R. S. of N. Y., 689, 690, §§ 55, 56, cited by Judge PECKIIAM, in 34 N. Y., 408; Bowen v. N. Y. Central R. Co., 18 N. Y., 408. The road owes a different duty to a citizen crossing its track, from that which it owes to a passenger. Beiseigel v. N. Y. Central R. Co., 40 N. Y., 9; Griffen v. N. Y. Central R. Co., 40 N. Y., 34; 8 Barb., 358, 390; Poler v. N. Y. Central R. Co., 16 N. Y., 476.

2 Corwin v. N. Y. & Erie R. Co., 13 N. Y., 42; Staats v. Hudson River R. Co.,

3 Keyes, 193; Tallman v. Syracuse, B. & N. Y. R. Co., 4 Keyes, 128.

3 Brace v. N. Y. Central R. Co., 27 N. Y., 269; Shepard v. Buffalo, N. Y. & Erie R. Co., 35 N. Y., 641. The statute in Vermont is held to bind the roads only in favor of adjoining owners, not in favor of trespassers; Bemis v. C. & P. R. R., 42 Vt., 375.

4 Sears v. Eastern R. R. Co., 14 Allen, 433; Denton v. Great Northern R. Co., 5 Ellis & Bl., 850; Gordon v. M. & L. R. R., 52 N. H., 596.

5 Weed v. Panama R. R. Co., 17 N. Y., 362; Hurst v. Great Western R. Co., 19 C. B. N. S., 310; Van Buskirk, 31 N. Y., 631; Blackstock v. N. Y. & Erie R. Co., 20 N. Y., 48.

6 Keating v. N. Y. Central R. Co., 3 Lansing, 469; S. C., 49 N.Y., 673. The decision assumes that passengers are to get on at the depot or station, at the place prepared and used for that purpose.

the train moves.

It is their duty to use every reasonable precaution in

receiving passengers, and in starting the train.1

It is also the duty of the railroad carrier to announce the stations along the road as the train draws near to them, and come to a stop by the platform or at a safe and suitable place for the passengers to leave the cars; and this announcement as the train comes to a halt, is equivalent to an invitation to the passengers to step off the cars; 2 for which purpose a reasonable time must be given."

Stopping for a space at a way station, to await the coming of a belated train, the carrier must give through passengers who are within reach, reasonable notice to get on board; the engineer or conductor must give the usual signal, and use all reasonable diligence to recall passengers to their seats in the cars. The custom, including the whistle and the call, indicates the admitted duty and the proper mode of discharging it.

§ 716. The law does not enable a party to recover damages for an injury resulting in part from his own negligence, or where his own. negligence contributes to the injury.5 The principle is one of general application. The common law does not undertake in such cases to divide and apportion the damages, or to impose damages in proportion to the fault or negligence of each party. Hence a passenger has no cause of action where he is injured through, or in consequence of, his own negligence; or is guilty of contributory negligence."

'Curtis v. R. R., 27 Wis., 158; Geddes v. R. R. Co., 103 Mass., 391; Brien v. Bennett, 8 Carr. & P., 724.

Columbus & Indianapolis Central R. R., 31 Ind., 408; Sonthern R. R. v. Kendrick, 40 Miss., 374; Nichols v. R. R., 7 Irish L. T., 58; Lewis v. R. R. L. R., 9 Q. B., 70; Dickens v. N. Y. Central R. Co., 1 Keyes, 23; 23 N. Y., 158.

3 Penn. R. R. v. Kilgore, 32 Penn. St., 292; T., W. & W. R. R. R. v. Baddeby, 54 Ill., 19. It is parcel of the carrier's implied contract that he will notify passengers when to alight, as the train comes to a station; and it is an act of negligence in a passenger to alight before such aunouncement is made. Taber v. Del., Lack. & W. R. R. Co., 4 Hun., 765; Johnson v. Hudson River R. Co., 20 N. Y., 65; Hayes v. Gallagher, 72 Penu. St., 135. It is also the carrier's duty to give passengers a reasonable time to alight. Burrows v. Erie R. Co., 3 T. & C., 44; and to bring the train to a rest, and avoid sudden starts or jerks, whilo the passengers are moving out of the cars. Milliman v. N. Y. Central & Hndson River R. Co., 6 T. & C., 585; S. C., 66 N. Y., 642; Santer v. N. Y. Central & Hudson R. R. Co., 6 Hun., 446.

4 State v. G. T. R. R. Co., 58 Maine, 176.

Baxter v. Troy & Boston R. Co., 41 N. Y., 502; Wilcox v. Rome & Wa. tertown R., 39 N. Y., 358.

6 Van Schaick v. Hudson River R. Co., 43 N. Y., 527.

'Spooner v. Brooklyn City R. R. Co., 54 N. Y., 230.