13. If one should expose himself to peril, contrary to the general regulations of the company notified to him generally, and especially by particular notice from the conductor at the time, as by letting his hand remain out of the car window while passing. a bridge, it is evidence of gross carelessness upon his part, which will, on that ground alone, justify a verdict against his claim for damages. 18

14. But one is not precluded from recovery for an injury caused by the negligence of the company, because he was standing upon the platform of the cars. And the statute of the State of New York providing, that where a passenger is so injured the company shall not be liable, provided there was at the time sufficient room in the inside of the cars for the accommodation of such passenger, has reference to such casualties as prove injurious only to persons upon the platforms of the cars. And a railway company, in order to claim the exemption created by the statute, must show not only that there was room within the cars sufficient to contain the passenger, but that there were seats unoccupied. And passengers are not obliged to urge other passen

18 Laing v. Colder, 8 Penn. St. 479. But see N. J. R. v. Kennard, 21 Penn. St. 203, where it was held, that if a railway company run passenger cars upon a road where the way is so narrow as to endanger the limbs of the passengers, while resting in the windows of the cars, they are bound to provide wire gauze, bars, slats, or other barricades, to prevent the passengers putting their arms out of the windows, or they are liable for all injuries happening in consequence of such omission. But to deprive the party of his right to recover, it must appear that his violation of the rules of the company, or the orders of the company's servants, contributed to the injury. And where the conductor of a gravel train, who was prohibited by the company letting persons ride, as passengers, and who informed defendant in error of the prohibition, nevertheless consented to take him as a passenger, and received fare from him, it was held he might recover of the company for an injury, through the negligence of their servants, during his passage. Lawrenceburgh & Upper Miss. Railw. v. Montgomery, 7 Porter (Ind.), 474. See also Zemp v. W. & M. Railw., 9 Rich. 84, where the plaintiff was injured while standing on the platform of the cars, the passengers remaining in the cars uninjured, and it appearing that notices were posted up in the cars prohibiting passengers from standing on the platforms, it was held to be a question for the jury whether the plaintiff had notice of the prohibition, and also whether the fact of his disregarding it contributed to the injury, and they having failed to find these facts, and given the plaintiff ten thousand dollars damages, the judgment was affirmed in the Court of Appeals. Ib.

gers to give up half a seat, or even whole seats, needlessly occupied by them.

15. The burden of proof in regard to negligence in the company, and due care on his own part, is upon the plaintiff who alleges an injury by one of the company's engines.19 But as negligence on the part of the plaintiff is not to be presumed, he is not bound to introduce affirmative evidence of the negative; but where there is conflicting evidence upon the point, the burden of proof is upon him.20

16. After the presumption of negligence has been established against a carrier of passengers, it can only be rebutted by showing that the accident was the result of circumstances against which human prudence could not have guarded. By this we are to understand such prudence as one might have taken before the occurrence, and not that which afterwards it may be apparent would have been proper.2

21

17. One who attempts to cross a railway track about the time a train of cars is due, and with his head so bundled as to obscure his hearing, and without looking to see if the cars are approaching, is guilty of such negligence, that he cannot recover for an injury thereby sustained; and it will make no difference that the engineer gave no warning of the approach of the train, as the statute requires. Such omission on the part of the company does not affect their liability otherwise than the omission of any common law duty, unless some specific consequence is expressly provided in the statute as the consequence of such omission.22

18. One who, after the proper signals are given by a passing train, and while the flagman is upon the crossing waving his flag, is killed in attempting to rush his team across the track of a railroad in a highway, is guilty of such reckless and foolhardy misconduct, that no recovery can be had for the injury.23

19. And where one, while waiting for a train, in the daytime, caught his foot against a weighing machine, the edge of

19 Robinson v. Fitchb. & Wor. Railw., 7 Gray, 92.

20 Button v. Hudson River Railw., 18 N. Y. Court of Appeals, 248.

21 Bowen v. N. Y. Central Railw., 18 N. Y. Court of Appeals, 408.

22 Steves v. Oswego & Syra. Railw., 18 N. Y. Court of Appeals, 422.

23 Wild's adm'x. v. Hudson River Railw. Co., 24 N. Y. Court of Appeals, 430. See also cases in 5, 6, and 7, Jur. N. S.

which was raised a few inches above the platform where it was necessary to be used in weighing baggage, and thereby fell and broke his knee-pan, it was held there was no evidence to go to the jury.24

20. In a recent English case,25 the question of the degree of caution required of passenger carriers is carefully considered. It is here said, that, in determining whether evidence of negligence has been given before the jury, the court must use the ordinary experience of life, and must consider whether the evidence of negligence be reasonable. And in commenting upon the case, which was where the plaintiff fell upon a staircase, in going from the platform into the street, in consequence, as he alleged, of the stairs being rendered slippery by reason of brass nosing upon the edge of the steps, and having no hand-rail upon the top of the banisters, the learned judges declare, that passengers are not entitled to have every precaution to insure safety which it is possible to suggest, after an accident has occurred, might have prevented it.25 If there is any actual damage to the passengers from the construction of a passage which they will naturally take, then the company are responsible for all injuries in consequence,26 as where there was an aperture in the railing of a bridge.26 But if a stairway is protected by walls on each side, the railway company is not bound to maintain a hand-rail upon the top of it for passengers to steady themselves by; or to put lead upon the edge of the steps instead of brass, because it is less slippery. The opinion of witnesses is not competent evidence of the necessity of such precautions.25

21. The English courts seem finally to have come to the definite conclusion that there is no difference between negligence and gross negligence, the latter being nothing more than the former with a vituperative epithet.27 And in the same case it was decided, that where the bill of lading specially excepted "perils of the sea," this will not embrace those perils which become disastrous by reason of the negligence or want of skill of

24 Cornmon v. Eastern Counties Railw., 4 H. & N. 781.

25 Crafter v..The Met. Railw. Co., 12 Jur. N. S. 272.

Longmore v. Great Western Railw., 19 C. B. N. S. 183. Rigg v. M. Sheffield & L. Railw., 12 Jur. N. S. 524.

27 Gill v. Iron Screw Collier Co., 12 Jur. N. S. 727.

the carrier and his servants. And the same rule was laid down in a former action against the same company.28

22. The question, what degree of negligence will preclude the party from recovery of another who is guilty of negligence directly producing the injury, is extensively and judiciously discussed in Isbell v. New York & N. H. Railway Company,29 and the conclusion reached, that it must be a direct and actual, and not merely a constructive wrong, and one that is the proximate cause of the injury, and not merely the remote and incidental cause of it.29

23. The rule of law deducible from the cases is fully and correctly stated, we believe, in a late case decided in the Exchequer in Ireland.30 1. The plaintiff cannot recover unless the injury was caused by the negligence of the defendant; nor even then, if he has so far contributed to the accident, by want of ordinary care, that but for that the accident would not have happened; but strictly, even in that case, the plaintiff is not precluded from a recovery if the defendant might, by ordinary care, have avoided the consequences of the plaintiff's neglect. So also the mere happening of an accident is not sufficient evidence of negligence, ordinarily, to be left to the jury, but the plaintiff should give some affirmative evidence of negligence on the part of the defendant.31 But in many cases the very happening of the accident shows want of due care, as where the defendants let fall a barrel of flour upon

28 Lloyd v. The General Iron Screw Co., 10 Jur. N. S. 661.

29 27 Conn. R. 393. It is said in a late English case, Cotten v. Wood, 8 C. B. N. S. 568, 7 Jur. N. S. 168, that it is equally the duty of one crossing a street or road to look out for vehicles coming along, as it is for the drivers of these vehicles to be vigilant in not running against persons crossing; and one suing for such an injury must give affirmative and preponderating evidence of neglect of duty on the part of the driver. And it is here declared to be established, that where the evidence on each side, in cases of this kind, is equally strong against the other's negligence having caused the accident, the judge ought not to leave it to the jury as proving negligence either way. But perhaps, where the evidence is conflicting, the judge is not the proper functionary to determine whether it is equally strong both ways. We should say he must submit it to the jury with instructions not to find a verdict upon an equal balance of evidence.

30 Scott v. Dublin & Wicklow R. Co., 11 Ir. Com. Law, 377.

31 Hammack v. White, 11 C. B. N. S. 588; s. c. 8 Jur. N. S. 796.

the plaintiff as he was passing the street.32 And where an engine driver blew off steam at a road crossing, or grade, where there was considerable passing, in such a manner as needlessly to frighten horses waiting to pass the line, it was held sufficient to warrant the inference that there was, in the company, actionable negligence.33

*SECTION III.

Injuries by Leaping from the Carriages.

1. Passengers may recover, if they have rea- | 5. Must resort to their action for redress.

sonable cause to leap from carriage, and sustain injury.

6.

Rule of law, where train passes station.

7.

2. But not where their own misconduct exposes them to peril.

Rules where a person enters the cars to see another seated.

3. But may recover, if injured in attempting to escape danger.

9.

4. Cannot excuse leaping from cars because train passes station.

cient time.

No recovery can be had where passenger leaves the cars on the wrong side.

§ 178. 1. It seems to be regarded as well settled, that a passenger who is induced to leap from the carriage, whether by coach or railway, by a well-founded apprehension of peril to life or limb, induced by any occurrences which might have been guarded against by the utmost care of the carriers, is entitled to recover for any injury which he may thereby sustain,1 where no

" Byrne v. Boadle, 2 H. & C. 722. See also Cox v. Brubridge, 13 C. B. N. S. 430; s. c. 9 Jur. N. S. 970; Scott v. London Docks Co., 3 H. & C. 596; s. c. 10 Jur. N. S. 1108; s. c. 11 Jur. N. S. 204. It was here declared by the Exchequer Chamber, that where the thing which causes the accident is known to be under the management of the defendant or his servants, and the accident is such as would not happen in the ordinary course of management, the accident itself, if unexplained, is reasonable evidence of negligence. And this seems to be the true ground upon which to rest the question. Where there are two modes of doing work in a public highway from which damage may result to a passer-by, both of which are usual, but one more dangerous than the other, it is for the jury to determine whether it is negligence to adopt the mode whereby others are most exposed. Cleveland v. Spier, 16 C. B. N. S. 399.

83 Manchester & S. J. R. Co. v. Fullarton, 24 C. B. N. S. 54.

1

Ingalls v. Bills, 9 Met. 1; Eldridge v. Long I. Railw., 1 Sand. 89; Stokes v. Saltonstall, 13 Pet. 181; Frink v. Potter, 17 Ill. R. 406; Southwestern Railw. v. Paulk, 24 Ga. R. 356.