in that capacity fifty dollars per month. Wells, Fargo & Co. paid to the defendants a monthly rate for carrying their packages and messenger over the route.

The plaintiff resided at Petaluma, and as he was about to enter the cars at that place, intending to make the usual daily trip to San Francisco, the boiler of the locomotive, then in charge of the defendants' engineer, exploded and caused the personal injury for which the plaintiff recovered judgment in this action.

At the close of the testimony the court, at the request of the plaintiff, gave to the jury the following instructions:

"First-If the jury believe from the evidence that the defendants were engaged in the transportation of passengers from San Francisco to Petaluma, and from Petaluma to San Francisco, before and during the month of August, A. D. 1866; that during this same period of time the plaintiff rented at a monthly or other rental of defendants, a bar on the steamer of the defendants, and travelled thereon to tend the same; that said steamer, during said period, ran on said route from San Francisco to a landing on the Petaluma Creek, from whence the passengers so transported were by defendants conveyed to the town of Petaluma, by cars propelled by steam, and from the town of Petaluma to said landing, by means of said cars; that for said rental of said bar it was understood and agreed as part of the consideration for the rental agreed to be paid by the plaintiff to the defendants, that the plaintiff should be transported on said route by said cars and steamer, without other or further charge; that on the 27th day of August, 1866, the said plaintiff came to said cars at the depot thereof at Petaluma, for the purpose of going to said steamer, and by and on said steamer to San Francisco, in attendance of said bar; that he was standing in the depot on the platform of defendants, usually occupied by passengers who were departing or arriving by said cars, for the purpose of getting on said cars, when the boiler of the locomotive attached to said cars blew up through the carelessness or negligence of the engineer of defendants, who was in charge of said locomotive, and the plaintiff was injured thereby (he, the plaintiff, not being guilty of any negligence contributing to his injury), the plaintiff is entitled to recover. "Second-If the jury believe from the evidence that the defendants were engaged in the transportation of passengers from San Francisco to Petaluma, and from Petaluma to San Francisco, before and during the month of August, A. D. 1866; that during the same periods of time Wells, Fargo & Co. employed the plaintiff to carry their express matter between said places, and paid the defendants.

to transport said express matter for a certain sum of money per month; and said plaintiff and said defendants entered upon said arrangement, and were engaged in the same during said period of time, and that it was understood and agreed between said defendants and Wells, Fargo & Co. that the plaintiff, as their messenger, should be transported with their said express matter from San Francisco to Petaluma, and from Petaluma to San Francisco during said period of time; that the defendants made such transportation by cars propelled by steam, and a steamer; that said cars started from the town. of Petaluma; that while thus engaged the plaintiff, during said period of time, came to said cars, at the depot thereof, for the purpose of going to San Francisco; that he was standing on the platform of said defendants, near said cars, for the purpose of stepping into a car of defendants (and that said platform was usually used by passengers departing or arriving by said cars), when the boiler of the locomotive attached to said cars exploded, through the negligence or carelessness of the engineer employed by the defendants, who was then in charge of said locomotive, and the plaintiff was injured thereby (the plaintiff not being guilty of any negligence which contributed to his injury), then the plaintiff is entitled to recover damages for such injury.'

The defendants excepted to these instructions, and contend that the case is within the reason of the rule that an employer is not responsible to his employee for injuries resulting from the negligence, carelessness, or unskillfulness of a fellow employee engaged in the same general business.

The rule itself cannot be questioned. It has been settled by a uniform series of both English and American decisions. The question comes upon the application of the principle to the present case.

The reason usually given in the cases for the rule, as we have stated it, is that a servant, in bargaining with his employer, is presumed to know the ordinary risks of the business in which he is to engage, and can obtain a compensation in accordance with the risks, or at his option decline the employment. Among the ordinary perils of the service are those arising from the carelessness or negligence of co-laborers, and they are presumed to be provided for in the bargain which he makes. He assumes the risk as a part of his contract of service. The duty of the employer in this regard extends no further than to the use of due care and prudence in the selection of competent servants in the several departments of the business. Farwell v. Boston & Worc. R. R. Co., 4 Met. 49; Albro v. Agawam Canal Co., 6 Cush. 77; Ryan v. Cumberland Valley R. R. Co., 23

Pa. St. 385; Russell v. Hudson River R. R. Co., 17 N. Y. 137; Hard v. Vermont, etc., R. R. Co., 32 Vt. 477; Shearm. & Redf. on Neg. §§ 86, 88, 90, and cases cited.

The doctrine of these cases is not based wholly or mainly upon the theory that the employee is presumed to know the nature of the risk.

In the case of Abraham v. Reynolds, 5 Hurlst. & N. 147 (1), cited by the appellant, it was suggested by Chief Baron Pollock that the test in such cases was whether the party injured, knowing the risk, incurred it voluntarily; and, as an illustration of the principle, said that a guest at a house was in the same position as a servant, because he had the same means of judging the character of the house in which he was.

We do not think that the test suggested by the learned judge is sufficient. An ordinary passenger acquainted with the structure or management of steam engines might know that the boiler upon a steamboat or locomotive was unsafe, or might observe that the engineer was careless or incompetent, and yet be willing, from motives of necessity or interest, to encounter the risk of travel. Yet this knowledge upon his part would not absolve the carrier of passengers from liability for damages for injuries received by the passenger from the negligence of the engineer, or insufficiency of the boiler.

The co-laborer cannot recover in such a case, because he knowingly entered into a contract, from which the law implies an assumption by him of these very risks.

We do not think the present case comes within the letter or reason of the rule. As messenger for Wells, Fargo & Co., merely, it is not contended that the plaintiff would not have occupied the position

1. The facts in ABRAHAM บ. REYNOLDS, 5 H. & N. 143, were: A. sold to B. some bales of cotton, which were in the upper story of a warehouse. B. employed C. to see it weighed, and lower it by means of a rope into a cart, which he contracted with D. to provide for it, who sent his servant E. for that purpose. In lowering one of the bales the rope broke, through the negligence of C., in consequence of which the bale fell on E. and injured him:-Held, first, that E. might

maintain an action against B. Held, secondly, that there was not even evidence to go to a jury, that at the time of the accident E. was either a fellow-servant of C. or a volunteer. But it is not in every case where a party works with the servants of another for a common purpose, that he becomes a volunteer, so as to prevent his maintaining an action against that party for an injury accruing from the negligence of his servants while working for the common purpose.

of an ordinary passenger. As barkeeper, he was in no sense an employee of the defendants. He was a lessee, for a monthly rent, of an apartment upon their boat, which he occupied for purposes of trade. His transportation over the route was a part of the consideration for the monthly payment. The defendants had no interest in the receipts of his business, and could not hold him accountable for its proper conduct. The parties were in no sense members of the same establishment for one common purpose. The vending of liquors and cigars to passengers was no part of the business in which the transportation company were engaged. The case would have been the same if the plaintiff had leased an apartment upon the boat for any other species of trade. If a cigar vender should rent and occupy, for the purposes of his trade, a corner of a merchant's store, and an explosion should occur through the negligence of the merchant's clerk, it would not be contended that the merchant would not be responsible in damages to the cigar vender for personal injuries resulting from the accident. The fact that the place of trade was upon a steamboat can make no difference in the application of the principle.

Grave objections have been made to the rule which relieves a master from liability for damages incurred by the negligence of a fellow-servant. While the rule is too firmly supported by authority to be overthrown, we are unwilling to extend it beyond the limits designated by the general line of decisions.

We think that the plaintiff in the hypothetical case stated in the instructions was entitled to the privileges and remedies of an ordinary passenger.

It follows that the court did not err in giving these instructions, or in refusing those asked by the defendants in opposition to them.

There was no error in the eighth instruction, given at the request of the plaintiff. It premises that the jury must be satisfied from the evidence that the plaintiff, at the time the explosion occurred, was standing upon the platform, intending to take passage on the cars, and about to step into the car; and then directs the application of the well-settled principle, that as between a passenger and a common carrier of passengers, the proof of the occurrence of an accident without fault of the passenger, is prima facie proof of negligence on the part of the carrier. Boyce v. Cal. Stage Co., 25 Cal. 467 (1); Ficken v. Jones, 28 Cal. 627.

1. BOYCE v. CALIFORNIA STAGE CO., 25 Cal. 467, is reported in 9 Am. Neg. Cas. 66, ante.

It was a contested issue whether the plaintiff was or was not a passenger, and the jury were required substantially to find this issue in favor of the plaintiff, before applying the principle of law embodied in the instruction.

Third-the sixth instruction asked by the defendants was substantially given in the charge of the court, and a repetition of it could not benefit the defendants.

We see nothing in the other points made by the defendants which requires special notice. The record discloses no error which calls for a reversal.

Judgment and order affirmed.

MITCHELL v. SOUTHERN PACIFIC RAILROAD COMPANY.

Supreme Court, California, December, 1890.

[Reported in 87 Cal. 62.]

RIDING ON PLATFORM-DERAILMENT OF TRAIN.-Where plaintiff, while a passenger on defendant's train, left his seat in the car, and stood upon the platform, alleging that from the speed of the train he feared an accident might happen, and believed the platform would be a more safe place, and while there the train was derailed and plaintiff was injured, and on the trial there was a question as to whether the conductor was on the platform with plaintiff or in the car, it was error to permit plaintiff's objection to the question to a passenger sustaining the conductor's statement that he and plaintiff went upon the platform together and that he returned to the car before the accident while plaintiff remained on the platform, as such question was an important one to show whether plaintiff acted as a prudent man, and for such error judgment for plaintiff should be reversed.

APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. Judgment reversed. "The following instructions were given by the Superior Court upon the subject of the burden of proof, and of the right of plaintiff to be upon the platform of the railroad car: 'The court instructs you that the burden of proving negligence rests on the party alleging it; and where a person charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of evidence. In this case, the plaintiff claims he was injured through the negligence of defendant's employees. So that if you find, from the evidence, that the weight of evidence is in favor of the defendant, or that it is equally balanced, the plaintiff cannot recover, and your