it is also shown that the bridge is planked all the way across between the rails, although it does not appear that either the plaintiff or Wood had been informed that such was the case.

"Under these circumstances, the case does not fall, as Judge Richardson very properly said on the former hearing in this court, within the class of cases where a passenger is excused from his rash act by reason of some imminent peril confronting him, due to the defendant's negligence;' neither does it fall within that other class of cases where the direction or invitation or assurance of safety' given by the company's servant so qualifies the act of the plaintiff as that it relieves it of the quality of negligence which it would otherwise have. Pierce, R. R. 329. The case clearly belongs to that class of cases where the injury results from some act of recklessness amounting to folly or foolhardiness on the part of the plaintiff, in which cases the plaintiff is not entitled to recover. Pierce,

R. R., supra; 1 Shear. & R. Neg. (4th Ed.), § 91 et seq.; Scheffer v. Railroad Co., 105 U. S. 252. This view of the case shows that the trial court erred in refusing to give the defendant's instructions as proposed, and in giving the instructions excepted to by the defendant company in the record. The objections, however, to the depositions offered for the plaintiff come too late. From what has been said, it is manifest that the judgment of the lower court is erroneous, and must be reversed; the verdict be set aside; the case must be remanded for a new trial to be had therein, in accordance with the principles declared herein."- Supreme Court of Appeals, Virginia, November, 1892. RICHMOND AND DANVILLE RAILROAD COMPANY v. PICKLESEIMER, 89 Va. 245 (1)

RICHMOND CITY RAILWAY COMPANY v.
SCOTT (2).

Supreme Court of Appeals, Virginia, May, 1890.

[Reported in 86 Va. 902.]

FALLING INTO EXCAVATION WHILE ALIGHTING FROM STREET CAR - LIABILITY OF RAILROAD COMPANY. - Where a street car stopped at a transfer point and the transfer agent, having boarded the car for the purpose of giving transfers where needed, got off the car, and a passenger, following his example, alighted from the same side of the car as the agent,

1. See report of former appeal in this action, preceding case reported.

2. Cited in Conway v. Lewiston, etc.,

R. Co., 87 Me. 283, 3 Am. Neg. Cas. 605, 609; Bigelow v. West End St. R'y Co., 161 Mass. 393, 3 Am. Neg. Cas. 890, note.

but not knowing that there was an excavation in the street on that side, and not being warned of it, fell into it and was injured, the company was liable for not warning the passenger or not directing him to get off the other side of the car, whereby the accident might have been prevented.

ERROR to judgment of Circuit Court of City of Richmond rendered March 9, 1889, in an action of trespass on the case, wherein Robert G. Scott was plaintiff, and the plaintiff in error, the Richmond City Railway Company, was defendant.

facts appear in the opinion.

WYNDHAM R. MEREDITH, for the plaintiff in error.

W. W. & B. T. CRUMP, for defendant in error.

The

Hinton, J. — This is an action on the case to recover damages for injuries sustained by a passenger from falling into an excavation while in the act of debarking from a street car.

The defendant company owned and operated a street or horse railway in several of the streets of the city of Richmond. One of its main lines ran on Main street, which is one of the principal thoroughfares in the city; and, in order to connect this line with Hollywood Cemetery, which is situated south of Main street, a branch line was run from that street to Hollywood, along Laurel street, the street leading from Main street to the latter place.

At the intersection of these two lines, at the corner of Main ·and Laurel streets, the company transferred its passengers reaching that point on its Laurel street branch, without additional fare, to its Main street cars running up Main street, or to its cars, which, running down Main street, turned off at this corner into Laurel street, north of Main, and ran to and down Broad

street.

At the southwest corner of these streets, Main and Laurel, there was an employee of the company stationed, to see that the passengers desiring to continue their journey on the Broad or Main street lines were properly transferred.

At this point the track of the Laurel street line ran out into Main street. Here the cars coming from Hollywood were stopped, the horse was attached to the other end, and the cars. were then started back on their return trips.

On the evening of the injury — namely, on the 20th of September, 1888 — a ditch or trench existed in Main street, running along the western side of the Laurel street track, a few inches. from the rail, about twelve or fourteen feet in length, fifteen feet deep, and about three feet in width.

This ditch or excavation had been made by the city authorities for the purpose of laying a sewer. Its existence, however, was known both to the transfer-man of the company and to the driver of the Laurel street car, who stopped every twenty or thirty minutes, near enough to it to see it and notice its location.

Just after dark, the plaintiff, Mr. Scott, a gentleman sixtyeight years of age, who was on his way to the corner of Fourth and Broad streets, took passage on the Laurel street car, coming towards Main street, about three squares south of Main street. He paid his fare and informed the driver that he was going to

transfer to a Broad street car.

There was only one other passenger on the car. When the car reached its regular stopping place, the corner of Main and Laurel streets, the driver stopped it alongside the excavation, with the step of the car projecting slightly over the edge of the excavation. The transfer-man came into the car just at this juncture, and was told by the driver that there were two transfers. The other passenger now arose, and, being nearer the door, went out first, and alighted on the east side of the car. The transfer-man next went out on the platform, and, by swinging himself around the back of the platform to the solid ground in rear of the car, as it was afterwards ascertained, succeeded in alighting on the west side of the car. And then the plaintiff, following the direction taken by the transfer agent, but being ignorant of the excavation, and of the means adopted by the agent to avoid it, went out on the west side of the platform of the car, and, in endeavoring to step from and off the car, was precipitated to the bottom of the excavation, and was thereby seriously, and, perhaps, permanently injured.

The jury, evidently regarding the foregoing as the facts established by the evidence in the case, returned a verdict for $3,500 in favor of the plaintiff, upon which judgment was entered by the Circuit Court.

The company now insists that the Circuit Court erred in the following particulars, viz.:

1. In overruling its demurrer to the declaration of the plaintiff. 2. In giving certain instructions and in refusing certain others; and,

3. In refusing to set aside the verdict and grant it a new trial. In the court below the defendant assigned no reason for the demurrer. But in this court it is argued, and with apparent

earnestness, that the declaration is insufficient in not showing, by proper averments, that the condition of the place where the car stopped" was such, by reason of the absence of proper safe-guards or warnings, as to have made such stopping negligence," etc. In other words, the defendant, overlooking the marked distinction between the two classes of cases, seeks to apply to a case growing out of the relation of carrier and passenger a rule in regard to declarations in cases against municipal corporations, where the gravamen of the action is the maintenance of a "public nuisance."

But, as I have intimated, this rule can have no application to the present case. Here the action against the defendant is not founded upon negligence in allowing the excavation to remain without proper safeguards or lights, but it arises out of the duty which every carrier of passengers is under not to expose his passengers to any danger in alighting which can be avoided by the exercise of extreme care and caution. In this case the declaration, after setting out that the plaintiff, at the special instance and request of the defendant, became a passenger on one of the defendant's street cars, proceeds: "And thereupon it became and was the duty of the said defendant to use due and proper care that the said plaintiff should be carried in said railway, and safely landed and allowed safely to alight at the intersection of Laurel and Main streets;" "yet the said defendant, not regarding its duty in that behalf, did not use due and proper care for the safe carriage and landing and alighting of the said plaintiff, but wholly neglected so to do, and with gross negligence and utter recklessness of its duty to said plaintiff, knowingly and negligently to wit, on the day and year aforesaid - stopped the said coach or car wherein the said plaintiff was a passenger, on arriving at the said regular and usual stopping place, at or near the said intersection of Laurel and Main streets, alongside of a trench or excavation in said Laurel street about, to wit, twelve feet in length and fifteen feet deep, the said defendant well knowing the trench or excavation to be at that point, so that the step of the said car was directly over the said trench or excavation; and the said plaintiff, being ignorant of the existence of said trench or excavation, in endeavoring to step from and off the said car, exercising due care and caution, stepped and fell, without fault on his part, directly in said trench or excavation, and was precipitated to the bottom thereof," etc. This was all that was

necessary in the declaration. It sets out the relation of passenger and carrier between the plaintiff and the defendant, the circumstances out of which the particular duty owing to the plaintiff arose, and the breach of that duty. The demurrer was, therefore, properly overruled.

As to the second assignment of error - namely, that the court erred in the matter of instructions - we think but little need be said. Eight instructions were asked for by the defendant, and of these one (the seventh) was given, while the rest were refused, for the reason, doubtless, that the lower court thought, as we think, that none of them were relevant to any evidence in the case, and were, therefore, calculated to confuse and mislead the jury.

As to the three instructions given by the court, there is nothing in either of them that could by any possibility prejudice the case of the defendant; for the two last submit the question of contributory negligence of which I have been unable to find the slightest evidence in the record to the jury; whilst the first instruction directs the jury to find for the defendant, unless they believe from the evidence that the injury to the plaintiff was occasioned solely by the negligence of the defendant.

We come now to the last question in the case, which is, whether the court erred in refusing to award a new trial. And upon this point there will be found no room for doubt if we recur to a few familiar principles of law relating to the liability of carriers of passengers. "Passenger carriers bind themselves,"

learned author, "to carry safely those whom they take into their coaches, as far as human care and foresight will go that is, to the utmost care and diligence of very cautious persons." Thompson's Carriers of Passengers, p. 443, § 3; Farish v. Reigle, 11 Gratt. 697; N. Y., P. & N. R. R. Co. v. Cooper's Adm'r, 85 Va. 939. And in N. & W. R. R. Co. v. Prinnell (Va.), 3 S. E. Rep. 95 (1), this court said: "The implied contract to carry safely includes the duty of giving the passengers reasonable opportunity to alight in safety from the train, and a violation of this part of the company's duty is culpable negligence, for which an action will lie." In Wharton on Neg., § 649, it is laid down that “when a danger approaches it is the duty of the officers of the road to notify passengers, so that they can take steps to

1. N. & W. R. R. Co. v. Prinnell (Va.), 3 S. E. Rep. 95, is reported in 7 Am. Neg. Cas. 12, ante.